Regulating speech on the internet?

When I was a law student in the mid-1970s, libel was a straightforward enough concept. Well actually, it was of course fairly complex, but nevertheless it was clear that the purpose of the law was to give a remedy to anyone who had been the subject of untruthful and damaging comment that had been published to third parties. What made it an effective cause of action for anyone damaged in this way was that the publication was always likely to involve a major corporate publisher whose pockets would be deep enough should a case be won: typically a book publisher or  newspaper.

The problem with libel laws however was that someone with a lot of resources could sufficiently frighten a publisher by holding out the prospect of years of expensive litigation with an uncertain outcome. Faced with the prospect of this, newspapers and publishers were often tempted to take the easier and less expensive route of not publishing whatever the potential plaintiff objected to, even where the proposed publication was true and the putative plaintiff’s case had little merit.

Then came the internet, and everything changed. Nowadays everyone with a computer and an internet connection can publish anything they like at the click of a mouse. It is extremely easy and cheap. No major publisher or newspaper is needed for this. The crankiest and craziest of individuals with the most absurd chip on their shoulder can instantly take their case into the public domain. And if anyone is wronged, they may then be forced to take off on a wild goose chase as they try to find out where in the world, and under what defamation laws if any, the thing was actually published. They may also find that the person or organisation owning the server or hardware which facilitated the publication has protected themselves effectively (or at any rate may appear to have done so) from any liability for what the author has said. And they may find that the perhaps anonymous author cannot be traced at all.

So now, as night follows day, there will be increasingly aggressive attempts to find ways of creating effective legal liability that will allow people who have been damaged online to find redress. Equally, there will be energetic campaigns to protect the freedom of the internet and its status as a location where regulation is minimal or non-existent and where people can say things that are unsayable anywhere else. Close legal regulation of the internet is something that is seen by many as the end of the web as an interesting source of information and a place of free interaction, not least because some authorities may have more sinister things in mind than just giving redress to the unfairly wronged.

I confess I find it difficult to imagine that the idea of the unregulated internet can survive, as there are many powerful people and organisations who will want to bring order into all this. And in truth it is hard to argue that someone should be allowed to use the web to destroy another’s reputation with false assertions, rumours and lies. And yet… free speech is the right that perhaps most particularly protects democracy and freedom, and the opportunity for people to bypass powerful publishing interests and make information available without excessive risk is at the heart of that. In addition, many people write fairly casually on the internet – as for example on Twitter – and don’t expect what they write innocently to become subject-matter for detailed legal interpretation.  And others may want to write reviews of good or services without fear of legal reprisal, or make a case freely where they feel they have been wronged.

I shall be interested to see whether some form of regulation can be found that does not compromise legitimate attempts to publish views and information. But if as I suspect such a framework is unavailable, I remain on the side of free speech. I guess.

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Tags: defamation, freedom of speech, internet, libel

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