Regulating anonymous blogs?

Fderalist Papers coverAn article by Marcel Berlins in today’s Guardian raises the issue of internet libel, especially by anonymous bloggers:

The web encourages lies and deceit. It’s impossible to know who lurks behind a funny nickname

On the whole, I can’t complain too much about the readers who respond to my column online … [but] I seriously considered suing one commenter for libel; I would have won, and English law, for purposes of libel litigation, allows the real identity behind an online pseudonym to be discovered.

It is that anonymity that’s at the hub of a debate and vote that takes place in the European Parliament tomorrow. An Estonian MEP, Marianne Mikko, is worried that a growing number of are written with “malicious intentions or hidden agendas”. She proposes that bloggers identify themselves and declare any interests they have in the issue they’re writing about. Her concerns should be taken seriously. … We may soon have to consider devising controls on entry, though what form they’ll take is not easy to envisage. It is possible that we will find out, in five or 10 or 20 years, that, in the internet, we have created a monster we cannot tame, whose capacity for doing harm exceeds any good it once brought.

I couldn’t disagree more with Marianne Mikko‘s proposals relating to blogs or with Berlins’ weary acceptance of their inevitably. Unsurprisingly, they have attacted much derision online, especially from blogs politically critical of the EU (see also here from today’s Telegraph online), though there are some rather more balanced assessments as well. For example, European Avenue suggests that Mikko should exercise judgment when reading information; I agree, we should all take responsibility for judging what we read, rather than expecting Mikko’s Big Sister to grade it for quality in advance.

In any event, it is important to be clear on the status of Mikko’s proposal. Torill Elvira Mortensen on Thinking with my fingers has an excellent discussion of them; and as she and Kosmopolit explain, Mikko’s proposal is not a legislative one, but simply a call for a non-binding resolution. The full text of the proposal is here (pdf). Between the recitals (the ‘whereas’ clauses at the start) and an appended explanatory statement, the main body of the draft consists of 14 resolutions. In it, Parliament

1. Urges the Commission and the Member States to safeguard media pluralism, to ensure that all EU citizens can access free and diversified media in all Member States and to recommend improvements when needed;
2. Suggests in this respect the creation of independent media ombudsmen in the Member States;
3. Welcomes the efforts to create a charter for media freedom and strive for its Europe-wide acceptance;
4. Stresses the need to institute monitoring and implementation systems for media pluralism based on reliable and impartial indicators;
5. Agrees that the level at which media pluralism is measured should be by an individual Member State;
6. Stresses the need for the EU and Member State authorities to ensure journalistic and editorial independence by appropriate and specific legal and social guarantees as well as for the media owners to follow the best practice in each market where they operate; …
8. Welcomes the dynamics and diversity brought into the media landscape by the new media and encourages responsible use of new channels such as mobile TV; …
10. Recommends the inclusion of media literacy among the 9 basic competences and supports
the development of the European core curriculum for media literacy;
12. Encourages the Member States to ensure that the application of EU competition law to the media as well as to the internet and communication technology sector facilitates and promotes media pluralism, and to take adequate remedies where the concentration of ownership has a negative impact on media pluralism;
13. Recommends that the regulations governing state aid are implemented in a way allowing the public service media to fulfil its function in a dynamic environment, while avoiding unfair competition leading to impoverishment of the media landscape; …

This is all of a piece with Parliament’s ongoing efforts to promote the principle of media pluralism, efforts which, be it said, have had no impact on the Commission’s thinking and thus on official EU policy in the last 15 years. It’s interesting, but unremarkable, and no different from what we saw last year and what we will see again next year from the Parliament on this issue. In words, these aspects of the draft are entirely within the usual run of parliamentary commentary on media pluralism. Where the proposal goes further than usual, though, is in three more of the draft resolutions. In them, Parliament

7. Proposes the introduction of fees commensurate with the commercial value of the user-generated content as well as ethical codes and terms of usage for user-generated content in commercial publications; …
9. Suggests clarifying the status, legal or otherwise, of weblogs and encourages their voluntary labelling according to the professional and financial responsibilities and interests of their authors and publishers; …
11. Encourages the disclosure of ownership of the media outlets to help to understand the aims and background of the publisher; …

These resolutions demonstrate the Parliament’s slow move towards getting to grips with online media. I’m not convinced that draft resolution 7 is particularly well thought-through. Neither is draft resolution 9. Notice that it is not couched in absolute terms; it does not recommend outlawing anonymous blogs; it merely “encourages their voluntary labelling”. Indeed, it is a relatively common strategy in to encourage voluntary action rather than to require it. Even so, I would still reject the necessity for the EU to encourage such voluntary labelling. It suggests that there is something inherently sinister about anonymous blogs. I suggest the opposite, that anonymous commentary is often the lifeblood of political debate, even dissent. Consider Drapier, Publius, and the tradition of political pamphlets in revolutionary France.

Moreover, it is in fact a nonsense to suggest clarifying the legal status of blogs. It is a throwback to the legislative mindsets of the early 1990s. At that stage, in debates about the legal regulation of the internet, there were two main camps: lawyers, judges et al on one side not understanding and largely frightened of the technology, and the techies on the other dismissing the law. But that wave of demands for internent-specific legislation passed as the lawyers came to understand the technology and how existing legal doctrine could apply online; whilst the techies have largely accepted that legal doctrine does have a role to play online. Now, in debates about legal regulation of the internet, we usually have three camps. In the first stand the lawyers and judges, now joined by policy-makers and legislators; in the second we have the techies, but now fragmented into many different strands with various and often competing interests; and the third camp is the new one, which we might call the “something must be done” brigade. It’s these social reactors, who respond to things like suicide pacts and dangers to children by demanding that something must be done. These social reactors push the policy-makers and legislators to legislate.

However, Mikko’s views are not of this third stripe. Rather, by seeking the clarification of the legal status of blogs, she seems to me to fall into the very-1990s category of demanding the regulation of what she doesn’t understand. As always, such a reaction makes for populist a and often popular politics, but very bad policy. Moreover, interring such a recommendation against anonymous blogging in the midst of sensible recommendations aimed at increasing media pluralsim is muddled and inconsistent: the effect would be to cut down on the diversity of viewpoints being expressed online, the opposite of what the other proposed resolutions are seeking to achieve.

EU Parliament Culture committee logo
Apart from being illogical in various ways, Mikko’s proposal is likely not to amount to anything very much anyway. Last June, she tabled it (pdf) at the EU Parliament’s Committee on Culture and Education. A report prepared by an MEP in this way is rather like a backbench TD or Senator in Ireland or a backbench MP or Peer in the UK making a speech to the house: a good indication of one representative’s views, but a long way from official policy, let alone legislation. The Committee adopted it, (press release), and sent it to the Parliament for discussion. This week, Parliament will vote on that draft resolution. Let’s assume Parliament approves it. The final resolution defines what it will be approving; by it, Parliament

14. Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.

In other words, even if the Parliament passes Mikko’s proposal, the only effect will be that it will be brought to the attention of the various policy-makers in the EU. Nothing else. It is not the first stage in a legislative cycle. Indeed, if the trend which has applied in respect of other parliamentary recommendations in the media pluralism field is followed, it will be politely but firmly ignored by those other policy-making bodies.

Even if it somehow, eventually, influences some legal text passed by the Commission and Council as well as Parliament, it is unlikely that a legal requirement of blogger disclosure would be consistent with international freedom of expression norms. For example, in McIntyre v Ohio Elections Commission 514 US 334 (1995) (Cornell | Findlaw | Justicia | Oyez) the US Supreme Court struck down a statutory prohibition on anonymous political campaign literature:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views … Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation … at the hand of an intolerant society.

Thomas F Cotter and Lyrissa Barnett Lidsky provide an excellent discussion of the issue in “Authorship, Audiences, and Anonymous Speech” 82 Notre Dame L Rev 1527 (2007) (SSRN | bepress); and the Supreme Court of Virginia relied upon it recently to invalidate an over-broad anti-spam statute.

Similar considerations under Article 10 of the European Convention of Human Rights could and in my view should lead the European Court of Justice to invalidate any legally binding texts embodying anti-anonymity provisions similar to Mikko’s. Guido and Slugger – and anti-EU anonymous bloggers – can all sleep more easily in their beds.

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