In writing a diary concerning an issue that has arisen on
New International Times, I realised that some of my concerns had much wider implications and should be brought to the attention of all bloggers, both in the United States and elsewhere.
It certainly supports, albeit from a slightly different perspective, some of the recent actions that Kos has taken on this site.
The first of these developments in the UK involves two recent cases that reaffirms the Court of Appeal view that defamation suits may be brought against US owned blogs in British courts - indeed, it would seem to apply to the blogs of any country.
The second concerns the new laws arising from the London bombings proposed yesterday by the British Home Secretary to deport or bar entry to anyone who foments or has fomented hatred on, among other media, web sites (the vague words are those that are proposed in the new laws).
The diary discusses how this affects me, as the UK registered owner of New International Times but also refers to the implications which may surprise some on how this can affect them, blogging from their own country.
Before you read the diary, it is necessary to explain the structure of
constitution was drawn up for the site that set out to achieve this - the litmus test of which was that the members could collectively throw me off it if they so chose. Well, I guess some got near it!
I do not want to go into the detail of the incident, but suffice it to say that a poster made an assertion based on the conspiracy theory that may not be unfamiliar to you. It is that the US government was complicit in the events of 9/11. A rejection of this and a subsequent request to withdraw was not satisfactorily resolved and the poster was banned by me, without reference to the site moderators. The diary explains the thinking behind this and the added difficulties of the new laws.
As most of you will know, I have been struggling with how a constitution designed to share ownership of a site amongst its members fits in with the legal and other responsibilities of the person who is the named owner of the site.
The general view expressed was that it doesn't; that either the site owned by all, for collective decision- making, or by the person funding it. Many were angered that I should have proposed that the site was of the former construction but when challenged by an individual, had reverted to exercising the rights of an individual owner.
I will not deal here with revisiting the events that occurred that surrounded the particular matter that triggered the discussion. I do feel a need to explain some of the legal background to my assertion that, in the one aspect of a poster threatening the legal position of the owner, this responsibility cannot be abrogated to others.
There are two legal situations, among others, that are particularly important. These are Defamation and Intellectual Property (Copyright/Trademark). How these affect blogs in the US are well described in a FAQ by the Electronic Frontier Foundation, set up to defend freedom in the digital world, on their site.
If one takes Defamation as an example, in the United States the law gives particular emphasis and primary concern to the Constitutional Right to freedom of speech. This affords a degree of protection to our type of commentaries on people and events. New European Times, however, is registered and funded in the UK. Here the law has evolved to give a different primary protection, and that is to the individual from being wronged by slander or libel.
A person is libeled in the UK if a statement:
* Exposes them to hatred, ridicule or contempt
* Causes them to be shunned or avoided
* Discredits them in their trade, business or profession
* Generally lowers them in the eyes of right thinking members of society.
In defamation proceedings a person has a defence if he shows that:-
(a) he was not the author, editor or publisher of the statement complained of;
(b) he took reasonable care in relation to its publication; and
(c) he did not know, and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement.
All three elements of the defence must be proved by the defendant. It is (b) and (c) which is of greatest concern to the owner of a UK site.
(Worryingly for US and the blogs of other countries, 2004 saw two cases decided in the British Appeal Courts that have an adverse effect on their freedom of speech. Both suits related to allegedly defamatory statements which had been made in the US.
The Court of Appeal in one of these, Lewis v King, began its assessment by restating the basic principle that the starting-point for the ascertainment of the most appropriate forum is the identification of the place where the tort has been committed. The court said that this is "by definition" England in cases of internet libel, since every text on the internet is published at each place where it is downloaded.
This in effect means that the test "ceases to be a potent limiting factor" in relation to internet libel, making an internet publisher "vulnerable to multiple actions in different jurisdictions". To the court, however, this is the price a publisher pays for choosing the internet as a medium: "...a global publisher should not be too fastidious as to the part of the globe where he is made a libel defendant.... in an Internet case the court's discretion will tend to be more open-textured than otherwise; for that is the means by which the court may give effect to the publisher's choice of a global medium."
The court went on to specifically reject the argument that it should take into account the question of whether the publication was targeted to England. According to the court, from an objective perspective, a defendant who has published on the internet has necessarily targeted "every jurisdiction where his text may be downloaded." The court also rejected the idea of a subjective test of targetting because it would "be liable to manipulation and uncertainty, and much more likely to diminish than enhance the interests of justice."
It has to be said that US courts are reluctant to enforce foreign judgments that would restrict your freedom of speech. So if you are sued in the United Kingdom for defamation, you might lose your UK case, but the winner would have a hard time collecting in the United States. One wonders, however, if the same is true when the new nominations to the Supreme Court are completed)
Another difference between the US and the UK is the federal law known as Section 230 which can protect Internet intermediaries from most civil liability for statements by another information content provider. This is well described in Bloggers' FAQ on Section 230 Protections. (It has to be said that it is unclear to me if the same protection would be available to the owner of a blog as is afforded by this law to the more remote responsibility of the ISP provider).
In the UK, the situation is different. Much of the UK law in this type of area is decided by Common Law, by decisions reached in judgement. There is not much available as guidance in this new area and, therefore, the subject is one of contentious argument among lawyers.The most famous case is Godfrey v Demon Internet Limited. In defence of their position, Demon has posited the question: "If someone insulted you in a pub, would you sue the pub owner for housing the defamatory remark?" Most commentators agree that the short answer is no, you would not, but if the same pub landlord did not remove a notice from his pub notice board pinned there by someone else and knowing it contained defamatory material, then he would be liable.
The defence proposed by Demon was described as "hopeless" by the judge examining their case and was struck out.
In other words, in the UK it is necessary for the owner of a blog to show by way of defence in defamation proceedings not just that he was not the author of the statement but that he took reasonable care in relation to its publication.
There is an excellent paper on this from the UK perspective here. Similarly, this commentary discusses the implications for freedom of speech on the Internet in the UK under the title "Gagging the Net in 3 easy Steps".
I would ask the members of this site to consider if the judgement as to whether or not something satisfies the legal requirements of UK law can be passed to an international membership. This is quite apart from the consideration as to whether the members can reasonably expect the owner to hand over to such an international membership the punitive risks that he or she, and not that membership, should take within the context of his own country.
This brings me to the second major aspect of the particular incident that has caused this consideration of these matters. This is the question of the owner and funder of a site being barred from entry into a country because of what is published on the site.
That this is a major consideration in the US, as it is in the UK, cannot be beyond doubt. The situation as to the reasons why a person can be deported or barred is much clearer now in the UK than in the US, and cannot be ignored whether one agrees or not with the rules that are intended to become law. These have been published today and are quite explicit, if open to a hugely worrying degree of interpretation, and can be found here.
Two aspects of these are of particular concern:
- " including fostering hatred or, advocating and justifying violence to further beliefs. The powers will cover statements already on record."
- "involved in listed extremist bookshops, centres, organisations and websites "
Let us take for example, say, an assertion that can be found on some of the wilder blogs. This is that the United States was responsible for the London bombings in order to create an environment for persecuting Muslim extremists and retain UK support for the Iraq war.
Does such an unsubstantiated statement "foster hatred" as perceived under these new UK proposals? In my view there is a risk that it would be deemed to do so given the current climate in the UK.
Is the owner of the site responsible for another poster making this assertion on his or her website? In the absence of case law in this area, one must revert to the rules governing defamation on the Internet and the answer would be yes under UK law. US bloggers need to be particularly aware of this, as their Section 230 immunity would not carry any weight in regard to decisions on entry into the UK.
Although I am talking generally, I would like to make clear how I personally would assess such a statement making an allegation of this type. Firstly, I hold to my primary principle that it is the duty of all liberal web site owners to allow the maximum freedom of speech that our laws allow and to be dedicated to ensuring that the boundaries are not wantonly reduced either by legislators or by timidity in how a web site is run. Any request to remove material would have to tested against such a primary duty.
In order to maintain these principles, I would take into consideration two factors. The first is whether or not the statement is of such seriousness that it could inflame and give support to those seeking justification for violent expression of antagonism against this country. If certain that it would, I would request the material to be removed. Recognising that a judgement call of this type is very difficult, I would normally expect this to be very uncertain and open to opinion. I would, therefore, move to the second test in such cases that would assess the evidential merit of the assertion being made i.e. the quality of linked supportive evidence to warrant the statement.
In the example quoted of the London bombings, if such an assertion was made on here, even if I were to be uncertain as to whether it should be removed on the first condition, it would certainly be so on the second.
Of course, I am talking about what would get, say, a US blogger potentially disbarred from entry into the UK. Whilst the exact basis for the composition of US "No Fly" lists are unclear to me, there is no reason to believe that the UK type of rules will not apply in that country. Or in China, or in Italy or any other country represented on this board. It is certainly not something that I would want to find out at the airport immigration gates!
For New International Times, I believe that the code of ethics published by cyberjounalist.net provides a useful guide on what material should be published here, although this has been produced without reference to the new and tougher laws that are being proposed in the UK:
Be Honest and Fair
Bloggers should be honest and fair in gathering, reporting and interpreting information.
Bloggers should:
- Never plagiarize.
- Identify and link to sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.
- Make certain that Weblog entries, quotations, headlines, photos and all other content do not misrepresent. They should not oversimplify or highlight incidents out of context.
- Never distort the content of photos without disclosing what has been changed. Image enhancement is only acceptable for for technical clarity. Label montages and photo illustrations.
- Never publish information they know is inaccurate -- and if publishing questionable information, make it clear it's in doubt.
- Distinguish between advocacy, commentary and factual information. Even advocacy writing and commentary should not misrepresent fact or context.
- Distinguish factual information and commentary from advertising and shun hybrids that blur the lines between the two.
Minimize Harm
Ethical bloggers treat sources and subjects as human beings deserving of respect.
Bloggers should:
- Show compassion for those who may be affected adversely by Weblog content. Use special sensitivity when dealing with children and inexperienced sources or subjects.
- Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
- Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of information is not a license for arrogance.
- Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone's privacy.
- Show good taste. Avoid pandering to lurid curiosity.
Be cautious about identifying juvenile suspects, victims of sex crimes and criminal suspects before the formal filing of charges.
Be Accountable
Bloggers should:
- Admit mistakes and correct them promptly.
- Explain each Weblog's mission and invite dialogue with the public over its content and the bloggers' conduct.
- Disclose conflicts of interest, affiliations, activities and personal agendas.
- Deny favored treatment to advertisers and special interests and resist their pressure to influence content. When exceptions are made, disclose them fully to readers.
- Be wary of sources offering information for favors. When accepting such information, disclose the favors.
- Expose unethical practices of other bloggers.
- Abide by the same high standards to which they hold others.
Does this mean that the constitution of our site is not valid? I earnestly do not believe this to be the case, except in the specific circumstances of the legality of what is published. Whilst I am clear that responsibility under the law must remain with the registered owner of the site, in all other aspects of its management the constitution remains as a unique and valuable way to run a forum. That is why I believe this matter can be dealt with by simple amendment. I would appreciate your comments on this.
O.K. what I am saying in the diary is that I personally cannot allow, under UK law, defamatory posts to be made on New International Times by others. In theory neither can US blogs run that risk if they are likely to be pursued in the UK. Whilst currently protected by the opinion of the US courts that they would create enormous difficulties if there was any attempt to enforce a UK decision that might infringe the constitutional rights of US citizens to freedom of speech, my understanding is that this is simply that - an evolved opinion. The US political blogosphere needs to be aware and alert to this, however, as any such defamation may be political in nature, and left-wing at that, and some might take the view that one cannot be absolutely secure that intended changes in the balance of power of the Supreme Court would give quite the same protection in such circumstances. I do not know the situation for bloggers in other countries.
Of greater concern, however, is the fact that one might be barred from entry into the UK or another European country for what is said on one's blog by others. I do not know how you get on US banned lists but I now know how you get on UK lists. Or now firmly don't know, as it will be the judgement of the Home Office operating to criteria which allows no sensible definition or interpretation.
Again, I do not know the situation in other countries and on what criteria they might ban someone. (As an aside, it should be noted that the proposed UK rules are said to give the same freedom to deport and bar entry that is currently exercised by France and Spain. Although we all operate under the same European Convention on Human Rights, the argument is that the way this has been framed into UK law, it is more restrictive than the way French and Spanish governments are able to operate under their legislative incorporation of the Convention and that is why these changes require formalisation. This raises an interesting point if the UK is only codifying what exists elsewhere. The UN has already said it disagrees with aspects of the UK rules - France and Spain may not be grateful for having this discussion brought out into the open.)
Slightly worrying, as I would still like to visit the States and you might like to come to the UK sometime.
US liberal bloggers are a gutsy crowd. I can imagine your reaction to both these aspects is that if there was an attempt to curb your freedom of speech or travel was curtailed you would fight it fiercely and loudly. You will certainly not allow the vague and uncertain possibility change your forthright and constitutional right to speak your mind. Nor should you and it is not the purpose of this diary to suggest that you do.
It is important to recognise, however, how the climate is changing and the increased legal uncertainties that are being created for the blogosphere in today's political climate. For that reason, I hope you feel it is worthwhile bringing these matters to your attention, at least to open a debate on matters that go beyond the current threats in the US on the role of blogs in political campaigning.