By Drew Wilson
Libel is often a threat for many bloggers. The fear of a lawsuit can be enough for a blog owner to just close shop and move on to other things in life. Unfortunately, for bloggers residing in the UK, that threat of legal action didn’t come from a company or an individual. It came from a regulator which basically said, “sign up with us or face getting sued.”
This disturbing story is coming from The Guardian which says that members from the media should sign up with them or face bank busting libel lawsuits. That veiled threat was also extended to bloggers.
From the report:
Bloggers could face high fines for libel under the new Leveson deal with exemplary damages imposed if they don’t sign up to the new regulator, it was claimed on Tuesday.
Under clause 29 introduced to the crime and courts bill in the Commons on Monday night, the definition of “relevant” bloggers or websites includes any that generate news material where there is an editorial structure giving someone control over publication.
Bloggers would not be at risk of exemplary damages for comments posted by readers. There is also a schedule that excludes certain publishers such as scientific journals, student publications and not-for-profit community newspapers. Websites are guaranteed exclusion from exemplary damages if they can get on this list.
Kirsty Hughes, the chief executive of Index on Censorship, which campaigns for press freedom around the world, said it was a “sad day” for British democracy. “This will undoubtedly have a chilling effect on everyday people’s web use,” she said.
She said she feared thousands of websites could fall under the definition of a “relevant publisher” in clause 29.
Facing libel cases is nothing new for bloggers. In fact, there is a term for some of these lawsuits. That term is SLAPP (Strategic lawsuit against public participation). In a nutshell, if an entity – be it a company or an individual – wants to shut down certain kinds of comments, all they have to do is file a legal complaint. The purpose of that isn’t necessarily to drag the individual through court for years (although that is an option for some), but rather, pressure the blogger to shut down by threatening them with millions in legal fees or damages to fight the case. It doesn’t matter whether or not the person making the accusation is in the right, it’s just a strategic move to shut down certain kinds of commentary.
What can make this particular move so controversial is that the government can pick and choose who can be more or less immune to a SLAPP lawsuit. If the blogger isn’t on the list, they are prone to such a legal tactic. It paints a very large target on those who are not on the list.
What this also does is allow for the government to affect the free-flow of information online. The free flow of information has been critical for uprisings against oppressive governments, stopping certain kinds of legislation and allowing more parties to have a voice on certain matters. Stifling this free flow of information is, unsurprisingly, an impediment to free speech in the country for some.
One might wonder, if a blogger tries to register and be on this list, and this blogger is known to be critical of the government, what’s to stop the government from just denying entry on the list?
The Open Rights Group, a digital rights organization in the UK, had a thing or two to say about this legal development on their blog:
Of course, the proposals have no regard for this meshed world of creator-consumers. All the thinking revolves around Big Media, so there’s no representation for me or you in the regulatory body it creates, nor accommodation for the realities of the meshed society we inhabit. By including the new meshed world of creator-consumer citizens into this measure intended as a leash for dinosaurs, nothing is achieved in terms of realistic regulation.
But a new, deadly weapon is created to allow the rich to chill and punish any of those creator-consumers who dare to challenge them. When an established publication publishes a diatribe, they provide an umbrella for its author to shelter them from the new threats made available through this new regulatory mechanism. They are already pretty good at shielding authors; as long as they have jumped through the new hoops and behave reasonably, there’s not much more threat here than before.
But when the same writer tweets an opinion, or when I post my opinion about it on my personal blog, this new regulation allows the well-resourced members of the media elite to subject us to weapons tuned for deterring the Murdochs of this world. The penalties involved are out of all proportion to any harm as well as way beyond your and my means even to buy insurance, let alone to pay.
Just the threat that we might get dragged into this Star Chamber for the stars would be enough to chill most of us. Until they were caught public figures, politicians and police were quite happy with the old arrangement, under which they and journalists committed illegal acts that benefited both sides. I’m sure those same people will be pleased to see a new arrangement that can be used to shut us all up, in prison if not in word.
The Open Rights Group is urging people to tell lawmakers that this legal development should be stopped in its tracks.
The Royal Charter also has its supporters. While referring to the phone hacking scandal that rocked the world of media for over a year, British Lord David Puttnam said that this Charter is a move towards a better democracy:
I believe there is a need to totally re-evaluate the way we look at the relationship between the media and democracy. Over the past decade or so, a great deal of thinking has developed around the notion of “a duty of care” – as it relates to a number of aspects of civil society. This has principally focused on obvious areas, such as our empathetic response to the elderly and infirm, to children and young people, to our service personnel. It has seldom, if ever, extended to equally important arguments around the fragility of democracy itself: to the notion that honesty, accuracy and impartiality are fundamental to the process of building and embedding informed, participatory societies. I believe our developing concept of a duty of care should be extended to “a care” for our shared but fragile democratic values.
After all, the absence of a duty of care within many professions can amount to accusations of negligence, and that being the case, are we really comfortable with the thought that we are being, in effect, negligent in regard to the long-term health of our own democracies, and the values that underpin them?
For those who remain in doubt, the clearest possible case is made out in the Hansard Society’s recently published Audit of Political Engagement 9, Part Two, Media and Politics.
I hope the events of this past week signify that we have collectively turned the page, and that politicians of all persuasions now recognise that the regulation of the media, entirely independent of government, and backed by appropriate powers of civil enforcement, is one of the fundamental guarantors of a healthy democracy in the 21st century.
Where things go from here remains up in the air. We’re not aware of a system like this existing in Canada, the US, or anywhere else in Europe, so we have no idea how this concept will play it if allowed to pass.
Drew Wilson on Twitter: @icecube85
