Tuesday, 10 March 2009

Uncharted waters.......

Just off the coast of Free Speech, across the Bay of Good Intentions, lie the Isles of Enforced Government Regulations.

These are dangerous waters for the Blogger vessels. One false move and they could find themselves beached on the craggy rocks of new government legislation. Nor is it just these submerged rocks they must navigate; there are Pirates abroad, ready and willing to throw their grappling irons aboard and steer us into the treacherous currents of Evolving Libel Law. Many a blogger has known an apparently innocent poster to arrive, who then leaves an obscene, or libelous post on his blog, which even though quickly removed, proves to have been copied and pasted onto dozens of spurious 'spoof' blogs as evidence of the need to close down the original Blog.

John Whittingdale MP is the nearest thing we have to a Coastguard. He is currently chairing the Select Committee on Press Standards, Privacy and Libel, although may not be as well disposed towards the free speech of Bloggers as we might wish, he is on record as saying:

"ISPs made a rod for their own back when they attempted to filtering out child pornography. If they're prepared to block this material, then they could block other illegal content. And if they could, then they should. The Government has had enough, this is why it's in talks about legislation."

The Committee has so far been hearing evidence from lawyers on both sides of the media libel divide. Those who predominantly act for Claimants have robustly defended their use of Conditional Fee Agreements (CFAs) . CFAs were introduced as part of Lord Woolf's 'Access to Justice' reforms, to provide a means of funding legal action for defendants in areas where Legal Aid was not available. The consensus of opinion at the time was that Libel Law had become the preserve of the very rich, and its protection was not available to those of more slender means. However, CFAs are not Means Tested, thus we hear the Chairman of the Media Lawyers Association telling us:
Two of the organisations that are members of the Media Lawyers Association, Trinity Mirror and News International, are being sued; it is a privacy action by Ashley Cole; he is on a CFA; his lawyer is charging £575 an hour with no doubt 100% uplift; he has three counsel; he has ATE insurance. Roman Polanski, the film director, he sued in libel - and that might be a topic you will come onto, libel tourism - but he never actually came to this country to prosecute the action, but Mr Polanski sued in libel; Mr Mathieson's firm was acting for the defendants; he was on a CFA. Cherie Booth was another person who has taken advantage. I believe Sharon Stone sued using CFA.

These are scarcely the sort of people you may have had in mind as being 'unable to access justice' for financial reasons; it seems completely wrong that a system that was introduced for people who did not have funds should be exploited by rich people and their lawyers.

The costs incurred under CFAs are having a direct effect on free speech, the quoted figures of around £1300 an hour are not under the control of the claimant who may be entirely unaware of how expensive his claim is proving. It means that regional and national newspapers are disinclined to defend a defamation claim; not because they have poor journalists, nor because the story was defamatory, but simply because the longer the time before admitting their 'guilt' and apologising, the more exorbitant the figures, not necessarily to the defendant, but to the lawyers - and this in a time of decreasing newspaper sales and a declining market. 'Apologies' and 'Out of Court Settlements' are more likely to represent economic reality than any representation of where the truth lies.

The conversation concerning control of the Internet has centred round the morally unassailable parameters of the protection of children. It is parents who should be responsible for protecting their children, not governments. If we allow the government to legislate under this guise and take responsibility for protecting our children, we will open the door to them to dictate and control what adults discuss and debate, from Jacqui Smith's second home allowance to the rights and wrongs of whether it really was like 'dining at the bottom of your garden' when the McCann's left their children alone in a strange hotel room.

Gerry McCann will be giving evidence this afternoon under the comforting umbrella of 'absolute privilege', which in practical terms means that witnesses are immune from civil or criminal proceedings founded upon that evidence; nor can their evidence be relied upon in civil or criminal proceedings against any other person. It will be a matter of intense interest to see the arguments in favour and against shielding parental shortcomings from the gaze of public attention.

Section 12 of the Human Rights Act was designed to provide a balance between Article 8 - respect for family life, and Article 10 - freedom of expression. Its current interpretation by the judiciary, and the lack of control over CFAs have led many to believe that free speech has never been in greater danger; Bloggers are in the front line of the defence of free speech, we must sail these uncharted seas with care.


Anonymous said...

Excellent blog.

Anonymous said...

"ISPs made a rod for their own back when they attempted to filtering out child pornography. If they're prepared to block this material, then they could block other illegal content. And if they could, then they should. The Government has had enough, this is why it's in talks about legislation."

What is he saying here? The government has had enough of what? Is he calling for wider censorship of the web? It would have been clear to most people that censorship of pornography was a difficult to argue with, thin end of the wedge.

Giolla said...

It's somewhat pleasing, in a rather depressing fashion, to have one of the great and good echo the sentiments I had about filtering when I worked for an ISP abuse desk when they first started breaking such nonsense in.

It was a bad an pointless idea then and it hasn't improved with age.

John Demetriou said...

A brilliant article, OH. Timely, prescient and very important and informative for fellow bloggers such as myself.

More needs to be aired on this topic. You seem well placed to do so.

Keep up the efforts.

Kind fellow Libertarian regards

John Demetriou of BoatangDemetriou dot com.

Mummy said...

I thought Mr Mosley was right on the button
'Pictures of him (Mosley) at an orgy had a “terrible, terrible” effect. (fucking right they did, eeuuuwwwww)'.
However Gerry McCann is a cunt.
'Madeleine McCann was treated as a "commodity" by the UK press, her father Gerry has told MPs' Fucking pot calling kettle, Gerry..
Mummy x

K. McEgan. said...

Like when I wrote a less than hagiographic blog about the late PC Carroll?Jeez,Land fit for heroes like my Grnadfather fought for?Hey sorry Joe you were shafted!

Gareth said...

Anon 18:26,

I think his argument is a bit like blog comments - moderate them and you're liable for the rum ones as much as the commentor, leave them unmoderated and you're not.

It's then an all or nothing approach. If they attempt to filter out one sort of illegal material the Government believes they have a duty to try and filter out all of it.

The simplest solution is to filter nothing.

Old Holborn said...

Thank you for this post Anna.

We are at an important crossroads. Filtering suggests purity, yet all I see is filth.

Anonymous said...

A CFA is commonly referred to as "no win, no fee". It means that you pay nothing if you lose or win, but if you win, the other side pays your costs.

This is NOT the free for all you're claiming it is. There is a legal requirement for costs to be proportionate.

So if someone was to sue you for libel, they can get a lawyer for £3000 per hour on a CFA if they want, but if they win, your lawyer will just point out that the costs of their legal team were laughable, and the judge will slash the costs down to the norm.

In fact, whining about costs is likely to get a reduction of 10% on normal cases.

Kill them all said...

That Whittingdale cunt certainly has a face that suggests he knows more than a little about kiddie porn.

Would you allow this man to be alone with your kids, let alone censor the fucking Internet?

katherine said...

I recently came accross your blog and have been reading along. I thought I would leave my first comment. I dont know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.



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