Is The Spectator like the owner of ‘a wall which has been festooned, overnight, with defamatory graffiti’? At its most thrilling this magazine does sometimes feel like that; but, in truth, the editorial hand here (though it may seem marvellously light to us contributors) is a quiet background presence protecting us and our potential victims from the publication of defamatory remarks. Not only would our editor do his best to chase away spray-painting hooligans before they did their work on his wall, but, should offending graffiti appear, he would come out fast with a brush, a bucket of whitewash and if necessary scaffolding: the equivalent of a published correction and apology. Or the law would do it for him: we could be sued. Such are the obligations of the publishers of a printed magazine, and they apply (to an extent as yet unclear in law) to its website, too.
They do not apply to Google, or, rather, to Google’s Blogger.com platform. In what may prove an important judgment last week, Mr Justice Eady found against a former Conservative council candidate, Mr Payam Tamiz, about whom some outrageously defamatory falsehoods had appeared on a blog, calling him a drug dealer and a thief. There was no shred of truth in any of this, and Mr Tamiz’s reputation could have been wrecked, but it now seems he has no remedy. His defamer (if he can be tracked down) is unlikely to be worth suing; that is why newspapers and magazines, being easier to sue, are expected to stand behind contributors and cannot simply wash their hands of what is submitted for publication.
But Google can do so, according to the judge. Echoing Google’s own submission, he accepted that their role was ‘a purely passive one’, like owning a wall, and ruled that Google’s facilitation of this blog did not amount to being its publisher, or even to having ‘authorised its publication’.
Perhaps your immediate sympathies, like mine, were with Tamiz; and then, after further thought, with the proprietors of traditional printed journals upon whom a much greater legal burden is placed. May this not mean that bloggers and tweeters can scoop professional journalists and journals with material that the latter dare not risk publishing? Many good and true stories start with unsubstantiated claims.
Such was my first response. But I’ve been mulling it over. Aren’t court judgments like these going to lead in the end to the death of the civil tort of defamation, and of privacy too? And wouldn’t that be a good thing? We are heading for free-for-all. Maybe we should embrace our destiny.
It is commonplace at this point to observe wisely that the law is in a state of confused transition from a world where the stately progress of a sentence from a writer’s pen to the printer’s ink gave ample opportunity for publishers to supervise the content of their publications, to a world where a tweet or blog can be halfway round the world before anyone but its author can give it a second glance. This new world of IT, we murmur judiciously, will have to evolve different rules. So hold your horses. Give it all time to bed down.
How very sage. Hear, hear! The problem is that not only do I have absolutely no idea how we ever will apply to the worldwide web even the ghost of the legal regime that a printed publication in an identifiable national jurisdiction must obey, but I doubt it’s even possible. Maybe the transition is not to a new legal dispensation, but to permanent anarchy. If you know otherwise, drop a line to coalition ministers who are preparing the ‘reform’ of the libel laws.
I’m on the board of a free-speech organisation called Index on Censorship; we gave a considered submission to the parliamentary committee considering these draft reforms, and I stand by it. But I do begin to wonder whether the careful little sea walls that lawyers and legislators are hoping to construct are all doomed to be swept away in a tsunami of cultural and technical change.
The point of the web is its near-instantaneous nature. Choruses of voices, barrages of approval, disapproval, complaint, support or dislike sweep across the internet in waves of tweets and blogs and readers’ posts. Most voices are to all intents and purposes anonymous; few can be held to account. The sheer volume and speed of this traffic makes it impossible for any editor or mediator to make proper checks before comments are posted. Horrible things are said — and wonderful things, and wise things, too. Truth, rumour, innuendo and downright falsehood swill around like gossip in a universal marketplace. I submit that this is intrinsically impossible to supervise or regulate. Its vices are the flip side of its virtues. The whole idea defies regulation.
And in the end the printed word will have to be accorded comparable freedoms: equity (or the threatened extinction of journalism) will demand no less.
But a publishing and communications world in which the civil law has almost no place will offer a big opportunity to identifiable publications that are responsibly run, be they in print or on screens. In a virtual anarchy, reputation becomes an enormously valuable asset. With nonsense and calumny swirling around everywhere — and when the notion that something must be true or somebody would have sued, is obsolete — we will more than ever look for publications we can trust. So let it rip. Bring on the cacophony. Let Google facilitate every willing voice; and extend those freedoms to journals too. Then readers will learn to read the walls we can trust.
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