Despite the topic, this is to be a short post (EDITOR – the road to hell is paved with good intentions). After all, as I was saying to a friend today, as my summaries are generally longer than what I am précising, Lord Justice Leveson’s full report of 2,000 pages might take me 4,000 pages to recap!
Instead I want to look at the regulation of bloggers. Leveson LJ addresses this from page 168 of Volume A.
He heard evidence from people responsible for websites including the Guido Fawkes political blog, Popbitch, which is a celebrity gossip site and the Huffington Post – effectively an online-only newspaper.
Lord Justice Leveson on Bloggers
He says, in describing the above at Chapter 3 para 4.6:-
These vastly different sites are all offered to the public in the same way; they all have the same theoretical reach to the entire internet-connected population at the touch of a button (particularly when facilitated by search engines). They are also, with the regulatory exceptions set out above, entirely unregulated, though subject to civil and criminal law in appropriate jurisdictions. However, it is noteworthy that although the blogs cited here are read by very large numbers of people, it should not detract from the fact that most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.
As we have seen with issues as diverse as the false accusations against Lord McAlpine, and the riots in England in 2011, there are legal consequences under the civil and criminal law for those who overstep the bounds.
Ill-considered tweets, re-tweets, blog posts and Facebook statuses can all lead to receipt of lawyers’ letters or visits from the police.
Leveson LJ goes on to say from para 4.20, in relation to the regulation of blogs:-
Blogs and other such websites are entirely unregulated. The Huffington Post UK is unique in having opted to subscribe to the Press Complaints Commission.
With regard to the oversight and regulation of content published by third parties, views of the Huffington Post UK to hosted and other user generated content on its site are broadly typical of other hosting sites. The Huffington Post UK does not pre-moderate or edit that content. Indeed, Ms Buzasi has said that: “We want to have their personalities shine through on their blogs but there is a framework to ensure that we’re – or our bloggers are complying with the law.”
At para 7 he states:-
Despite the efforts made to comply with national law, it is clear that the enforcement of law and regulation online is problematic. Although the law with regard to online content is clear, and UK hosted content is by and large compliant, the ability of the UK to exercise legal jurisdiction over content on Internet services is extremely limited and dependent on many things. These include: the location of the service provider; the location of the servers on which material is held; and international agreements and treaties.
Most successful attempts to induce service providers of any sort to take enforcement action in relation to content are either through agreement, or dependant on case-specific court orders. In his evidence to the Inquiry, Mr Crowell (as well as representatives from Microsoft and Google) said that Twitter would enforce orders made by UK courts, in so far as they might apply to UK users, on a case by case basis. In practice, this means that for Twitter to remove a defamatory tweet that was re-tweeted, a court order would be needed in relation to every relevant tweet by every individual unique user who repeated that defamatory content.
In his concluding section, in Volume 4, Chapter K para 7.15, Leveson LJ quoted Paul Staines, creator of the Guido Fawkes blog, discussing the suggestion that blogs should be subject of PCC regulation or its equivalent:-
“It would bog us down in bureaucracy by opening a channel for politically motivated nuisance complainants. Every single article we write that voices an opinion is challenged by our readers in the comments, on Twitter and via email. If we were obliged to respond to complainants we would be overwhelmed. It is ridiculously impractical given the volume of specious complaints.”
At page 1656 Leveson LJ states:
Finally, issues have been raised about for whom any such regulation or standards would be mandatory. Specifically there are concerns about the ability of legislation to identify relevant online providers in a world where anyone might contribute to news and current affairs discussion online, via Twitter or blogs, alongside big news providers (including newspaper websites).
At paras 3.185 and 3.186 in Appendix 4, Leveson J states:-
The courts have struggled to apply traditional defamation principles to the internet and the case law has thrown up a number of interesting issues of unique application to the internet. For example, a special feature of chatrooms, message boards or blogs is that the text can continually evolve with new comments being added which may affect the context and meaning of previous and subsequent post. It has been decided that the final thread must be treated as a single publication for the exercise of determining meaning. Further, the meaning of the words must be considered in light of the purpose and role of chat rooms and message boards, where casual, emotive and imprecise speech are all common features. As Eady J explained in Smith v ADVFN people who participate in bulletin boards expect a certain amount of repartee or give and take.
The application of the defamation principles to the internet remains an area of considerable uncertainty. Whilst the courts have attempted to fashion principles that are workable in the short term, the law in this area is far from clear and this has given rise to conflicting decisions. Other jurisdictions have similarly struggled to grasp the complexities of the operation of the internet and recognised the need for the courts to view libel allegations within the unique context of the internet. A comprehensive framework of coherent rules and regulation remains lacking and it is likely that the law will be subject to further development in this area.
Lord Justice Leveson did not make recommendations regarding regulation of bloggers, trusting, it seems, the civil and criminal law to deal with its excesses.
Frankly, and bearing in mind the suggestions of statutory regulation for the mainstream media, it seems a surprise that the report effectively ignored the Internet.
Where Does the Criminal Law Apply Online?
There will be websites where readers of this blog have ventured where the discussions seem regularly to cross the boundaries of both the civil and the criminal law. Part of the problem for the police in dealing with alleged criminality on the internet is that they simply do not have the resources to deal with each and every example which could be reported to them. Instead there seems to be a policy of selecting individual “offenders” in an effort to set examples for the rest of the online communities. Sadly that des not yet seem to have worked. People still spout arrant nonsense, and far worse, over Twitter and on blogs and message boards.
There are some threads on websites where, to be honest, almost every post would seem to fall foul of the criminal law!
The legislative tools available to the police and procurator fiscal include:-
- The common law offence of breach of the peace;
- Threatening communications under Section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011;
- Threatening behaviour under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010; and
- Making improper use of a public electronic communications network under Section 127 of the Communications Act 2003 (made infamous by its use in the Twitter Joke trial).
In addition, where a blog or tweet could be seen as potentially prejudicial to an ongoing criminal case, the Contempt of Court Act could be invoked.
In practice, it is very rare for blogs to be removed on the ground that the criminal law is breached. There are rare occasions where the police might advise a blogger to remove material on the basis that it is considered to be in contravention of the criminal law. However, it takes a lot to make this happen. Usually it would involve either the “target” for the allegedly criminal blogging, or the allegedly criminal blogger, to be of some prominence, even if only in a small field.
I know of one person who was subject of a number of complaints regarding their blogging activities. Ironically this showed both the advantages and the disadvantages of the present procedures. In one instance the police visited the blogger and suggested that the offending material be removed, which it was. No further procedure was necessary. In another the police at first denied having received a complaint, and when it was proved that it had been received then stated that they had investigated and decided that the material was not in breach of the law. Clearly the person who denied receipt of the initial complaint had been mistaken.
(For the avoidance of doubt, and in case anyone thinks differently, I have never had a visit from, or contact with, the police regarding my own blog, not frankly would I expect to.)
Does it amount to censorship if the authorities ask for a blog post or tweet to be deleted on the grounds that it might breach the criminal law? That all depends on your perspective, I suppose.
On one hand, it seems a sensible step, avoiding the public expense of a prosecution. However, the problem is that material on the internet rarely disappears entirely, and where the act of removal becomes known, the Streisand Effect kicks in, and normally far more people then read, or become aware of the deleted material than would have see it in the first place!
So where the police descend on a blogger and suggest, on pain of prosecution should he or she demur, that a post should be deleted, are we seeing, as I have read, the Stasi coming to Scotland? No.
However, the concern with all these issues is that, no matter how fairly the law is applied just now, it could be extended in its application to cover saying things which criticise, for example, the government, or the rich and powerful.
The Potter Stewart Test
Perhaps, rather than a precise legal analysis, the best way of determining if online material breaks the law is to apply the test used by Justice Potter Stewart of the US Supreme Court in Jacobellis v Ohio, who, in a case where the definition of hard-core pornography was at issue, he said that “I know it when I see it”. (In that case, he found that the material was not “it”).
But can we apply a common sense approach to these matters when what would be deemed offensive and threatening by one would be regarded as nothing more than innocent banter by another. Paul Chambers, when tweeting – “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!” – did not expect to have to go through two appeals before the High Court quashed his conviction for a breach of s 127!
(And has anyone yet worked out why Robin Hood Airport is in Doncaster, and not Nottingham?)
We come by this longer than expected route to the football field (figuratively). The common sense approach simply does not work where people make comments which are perceived by readers as critical of their team, or of their fellow fans, or of anything to do with their favoured club. The “exuberance” of bloggers and message board posters can run away with them, and before they know where they are, the police are at the door.
It seems that, from my knowledge of various cases, that the police are more likely to act where there is deemed to be a specific threat, rather than a generality of vulgar abuse. In such cases, the nature of the comments and the position of the companied form the basis for the decision about what to do.
So, for example, should a public servant feel that they had been threatened by online postings, then the police are more likely, I suggest, to visit the alleged perpetrator than if it was an ordinary Joe Bloggs.
Something of that nature appears to have happened today with the prolific blogger on Rangers-related matters and best-selling author Mr Leggat. He has stated that he was forced by the police to remove a blog post earlier today. The net effect of that is, I am sure, that far more people will read what he wrote than would have done so if it had been left unremarked. I make no comment on what Mr Leggat had written, not having had the pleasure of reading it, but I suspect that ten seconds on Google would locate a copy of it.
This shows the problems the authorities have. If Mr Leggat’s post did fall foul of the law (and I am not suggesting it did, notwithstanding the apparent view of the police that it did) then the act of removing it gives it wider currency.
If a post is removed on police suggestion because it contains a threat (and I am not suggesting that Mr Leggat’s did) then is it in the public interest, or even the interest of the victim for it to be spread around far more than was originally the case?
Here there is a dilemma for both the authorities and for the victim. Complain and run the risk of lots more people becoming privy to the matter, or do nothing and be seen tacitly to have condoned or accepted what was said. This shows how difficult the whole area is, and as Leveson LJ says, it might require a comprehensive review of the law in these matters to allow these issues to be resolved properly.
I am instinctively in favour of free speech, but as the press have discovered, with the right to free speech comes responsibilities.
I am sure that the police’s action as related by Mr Leggat was motivated by nothing other than a genuine and neutral assessment of the post in question. However, in such a polarised field, it is not surprising that there would be a clamour from fans of Rangers that their champion is being “gagged”.
One of the issues which seems to perturb some Rangers fans is that Mr Leggat was the recipient of a visit on the day his piece was published, whilst others, seen as anti-Rangers, your humble scribe included, have been able to post with impunity for a long time with no action being taken.
Speaking for myself, that is simply because I do not write anything which I think falls foul of the law.
Regular readers might recall though that recently I removed a few blog posts of my own after some very pleasant and mutually respectful discussions with lawyers acting for The Rangers Football Club Limited. This was a very different situation from that apparently involving Mr Leggat, as the debate centred on application of certain principles of civil law.
Both parties agreed to differ on their respective legal interpretations, but, on the basis that the other party is rather wealthier than I am, I decided that it would be quixotic in the extreme to take them on.
What is ironic is that, I suspect, many of the commenters who now join with Mr Leggat in bemoaning the act of “censorship” were the same ones who were proclaiming their delight at Rangers “taking on its enemies” when I was agreeing to do what their solicitors wanted!
It could be argued that the cause celebre of Mr Leggat’s blog and my interaction with Rangers lawyers show that the criminal and civil law “works” to regulate the blogosphere.
On the other hand it might show the arbitrary nature of the law. I am sure that, no matter what the police perceived Mr Leggat as saying, I could find significant material on the same topic which was far more serious in just a few minutes. Equally, I suspect that the topic of my posts to which Rangers took offence have been aired fully elsewhere (although with no involvement from me).
For many years John Ebdon presented a programme on Radio 4 where he looked back in the radio archives. It was always introduced by the announcer saying that “This week John Ebdon looks at ….. but comes to no serious conclusion”.
I feel the same – I find it hard to come to a conclusion regarding this. Lord Justice Leveson has perhaps been wise to keep away from the issue, having been bluntly warned of the problems of “regulating” the bloggers by Paul Staines.
The starting point in my view is that, as in the USA, free speech should be encouraged. However, even in the States, there is a line to be drawn.
I suspect that both Mr Leggat and I may have similar feelings about having our “free speech” rights infringed, even where we, or our readers, might have different views about each other’s writings. I also suspect that we might have in common an upsurge in views of our respective blogs – after all, the most visits in the last eighteen months to my blog took place on the day after the blog posts were removed.
I suspect that the Streisand Effect will do its work for Mr Leggat too!
Posted by Paul McConville