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.