Internet cannot continue being a law unto itself
Scotsman.com News - Opinion - Internet cannot continue being a law unto itself
Campbell Deane
LORD Bragg’s comments that Tony Blair nearly quit as Prime Minister because family problems put him under "colossal strain" have been widely reported by the press. While the fact that Blair had come so close to resigning was news to the media, the reasons for these personal and family problems were not. To date, no newspaper has published the details of these problems; the same cannot be said of the internet.
Both the Prime Minister and his wife jealously guard the privacy of their family life. They are no strangers to the courts or the Press Complaints Commission (PCC) when someone oversteps the mark. The press is regulated by the PCC’s code of conduct. Part of the code deals with the issue of privacy. While the commission’s sanctions are limited, the press is aware that, if it systematically fails to follow its own guidelines, the ultimate sanction lies in the government deciding that, if the media cannot regulate themselves, then government will. It seems distant days since David Mellor spoke of the press being in the "last chance saloon". Many on the receiving end of the tabloids would consider that they have not only got drunk in that saloon but moved on to the nightclub.
But in the present controversy, the media have acted responsibly. They are aware of the reasons why Mr Blair was under strain and have chosen not to divulge them. Unfortunately for the Blairs, the real difficulty comes from the internet.
Rumour and speculation are rife; websites and bulletin-boards are devoted to the subject of the Blairs’ private affairs. So, how do you stop people accessing such sites or putting the information on to them in the first place? More importantly, in a society that holds freedom of expression as a cornerstone of democracy, is it right that anyone should be stopped from expressing their views?
Civil libertarians will argue that there should be no censorship. But the ever-increasing number of criminal prosecutions for child pornography held on computers would indicate that there is some need for control. Just how far should the internet be policed and by what methods? There is, after all, no specific law of the internet.
The only way to do this is to allow different parts of the law to develop. You simply can’t legislate against the whole entity. Criminal law has embraced this in relation to grooming offences and images of children.
As far as libel law is concerned, the law is in a stage of development. If you host a website which contains a defamatory statement, there is a defence to an action if you can show you didn’t exercise editorial control over the site. Conversely, you must show that you exercised reasonable care. It is a Catch 22 situation; how you can exercise reasonable care without acting as editor?
Likewise for those sites that operate discussion forums or bulletin-boards: if you allow something to be published without exercising reasonable care, then you open yourself up to an action. This is what happened to the Sunday Herald which paid damages to Lord Robertson over defamatory allegations posted on one of its bulletin boards.
But many of the sites that host such forums have little or no financial backing. After all, anyone can create their own website. It is not difficult to do. There is little point pursuing a libel action against a party who will not be able to pay. As a result of this, actions tend to be raised against the internet service provider (ISP) because they do have money. But ISPs have a defence. If asked to remove the site, they cannot be sued if they comply with the request and, given the possible damaging exposure over the contents of a site over which it has no control, an ISP will almost certainly remove a defamatory posting rather than risking expensive litigation.
But there are many ISPs out there. There is little that can be done to stop the cyber-terrorist who is determined to get his message across. I was involved in one case where an individual set out systematically to bring down an online publisher. We sought interdicts, and they were granted; he set up elsewhere. It turned into a game of cat and mouse. No matter what actions we took, he tried to get his message across. And in attempting to get that message across, people started to believe him. The public seems unable to differentiate from what they read on the internet and what they read elsewhere. If it’s on the net, there is always someone who thinks it must be true.
In one case involving allegations of rape by certain Premiership footballers, the net was awash with the names of those suspected. In some cases, the names were completely wrong. What starts off as a rumour soon gathers momentum. By the time you have e-mailed five of your friends with the details from the site and they have done the same, it becomes fact.
But rumours can play to the media’s advantage. John Leslie was named on the internet as being the man at the centre of rape allegations, long before the mainstream media published his identity. Likewise, while the Prince of Wales was able to get injunctions from newspapers to stop them publishing details of an alleged incident with a butler, full details could be obtained on many internet sites. The issue is what happens when the drip of information on the net becomes such a part of the public consciousness that the media feel obliged to report it. In short, if they failed to do so, they would not be acting responsibly.
But what happens if what is published is not defamatory? What if it is true? In these circumstances, the only recourse would be to argue a breach of privacy. While the Blairs would be entitled to obtain injunctions on the basis of such a breach, the difficulty would lie in the fact that the family difficulties, which have led to the Prime Minister considering resigning, carry a huge public interest. Would the public not have the right to know the full story and would a responsible press not be obliged to disclose it? The courts used to define public interest as being national security. That has now changed. In an age where the public thrives on gossip and tales of celebrities, they have now held that what is interesting to the public falls under the heading of public interest. It is difficult to see what would not fall into that category.
One thing that Prince Charles would be able to tell the Blairs is that, when a story like this gains momentum, there is no going back. The drip-drip will get bigger and bigger until the dam bursts.
Perhaps Tony Blair’s biggest dilemma is the fact that he has taken a principled stand in refusing to discuss his family life. In the MMR debate, he refused to say whether his son Leo had received the triple vaccine. He did so on the basis that, if he gave the press any comment in respect of his family life, they would ask other questions. If he does so this time, does it not open him up to accusations of hypocrisy?
It would be nice to think that the media will take a principled stance and not publish. Somehow, I don’t think that is likely. As for the internet, well, maybe it is time to let the law develop further. Some things are better kept private.
• Campbell Deane is a media lawyer with Bannatyne, Kirkwood, France & Co.
September 16, 2004 at 07:46 AM in Internet evolution | Permalink
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