An 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 blogs 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 EU media policy 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.
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.
My first objection to a someone trying to outlaw anonymous blogs/comments is that it sounds like a completely unenforceable law. It seems that people would just blog/comment offshore or through proxies to hide their identity. A number of anti-spam schemes have also fallen foul of this.
Is it generally considered a bad idea to create unenforceable laws, regardless of their other possible merits?
A great in-depth post on this important issue. I wouldn’t agree with Berlin’s suggestion that the web encourages lies and deceipt, however it does allow such lies and deceipt. I have always considered it to be one of the few annoyances of the internet that people remain anonymous while making outrageous claims. However I have noticed over time that as the web matures, the more genuine people are prepared to make their identity known which has drawn attention to the fact that others choose to remain anonymous. Over time I think anonymous statements will be discounted more and more.
Any attempt to control the internet will fail. The Geeks- bless them – are always one step ahead. So this will fail. Good – we need a place where no-one is in control, in a world beset by more and more totalitaration leaning governments. Such as ours.
It would be acceptable if, in exchange, the lies and deceits of the EU and National Governments could also be controlled. They have protection from prosecution and use lies, deception and all manner of corruption continually to gain their ends.
If you were to look up “politics” in Roget you would find that is is all about subterfuge and trickery.
Where there is smoke………….
Tilting at windmills and all that!
This is the thin end of the wedge. It’s how the EU works. A couple of months ago they released an internal report that claimed that internet bloggers spreading disinformation about the EU Constitution were behind the Irish No vote. Naturally the EU needs to find a way to block the Irish bloggers before forcing Eire to vote again. They need to act fast, because in 2010 the UK will almost certainly have a right-of-centre part in government that has already promised a referendum on the constitution which would almost certainly also result in a No vote. To give the EU the best chance of scuppering the democratic process the EU must do all it can to limit free-speech, starting with bloggers, and it must achieve this before 2010. So this resolution quietly being proposed by Latvia of all places is the first step in gettings some momentum behind a change to EU law that would limit bloggers right to free speech. My guess would be that this will snowball into a law designed to protect people from paedophiles, libel, on-line rip-offs, spam, terrorism and all manner of other on-line nasties that will include in the small print a reference to banning criticism of the EU (a clause that already exists in the EU Constitution).
There would be something wrong with blogging with a funny nickname… why?
Anonymity has its own value; it is not, as Ms. Mikko suggests, a problem. It ensures that ideas are judged upon their merit, not upon the reader’s personal view of the writer. Should people on the internet claim to be someone else, then use their own personal characteristics as justification for their writing, their readers should have the good sense to ignore it as the unsubstantiated writing that it is.
Unlike a man asking for a lady’s father for her hand in marriage, bloggers – nor any media personnel – need not declare their intentions before receiving permission to move forward.
Hidden agenda? What on earth should one disclose? “My name is chocolate-lover, and I care about freedom,”? What kind of “hidden agenda” does one really have in blogging? Again, this all stems from the problem of evaluating a person’s writing not on its own merit, but upon the individual.
Technomist is not my real name. If I said it was Joe Blogs, would you believe it was more real and relax more than if I said I was Sir Reginald St John Grimaldi-Thrump? Or would you prefer to know that I have chosen not to pollute your mind with a preconception and admitted up front that I don’t what you to know who I am or why I prefer to be anonymous.
Marianne Mikko. What should bloggers fear from the person of that name? Kind of a personality is she hiding behind that innocent , almost cute, sounding moniker? What agenda has she got in wanting to make it easier to identify her critics? Does she have things she is interested in that make her want to discourage people from saying things about her? Has she declared these interests? What expenses and salary has she claimed from the taxpayers of Europe while she has been working so hard to take away their rights to anonymous comment? Does she think we should be told?
There has recently been uproar in the Greek language blogosphere when the newly appointed minister for justice supposedly proposed similar legislation in order to get bloggers to write under their own names for legal purposes.
BTW Teacher Dude is not the name my parents gave me.
Well, I believe that everyone chooses to remain anonymous or not. I can only say that in my opinion, non-anonymous blogging has no advantages. I don’t even get the idea that my data could fall into the hands of third parties. Therefore, I personally support decentralized sites such as Utopia p2p https://u.is/, which allow you to maintain anonymity.