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Tuesday, 20 November 2012

The de-democratisation of democratised media

Ignorance is no defence in law.

No-one gets off a murder charge just because they thought it was legal to shoot a Welshman with a longbow in the city of Chester.

But what happens when laws get so complex that the vast majority of people genuinely have no grasp of what they can and cannot do or say?

What happens when laws are so far removed from natural concepts of justice and fairness that the vast majority of the population have no idea that such a law even exists?

What happens is this. We create barriers and social divides that alter the way that the public participate in mass media such as Twitter and Facebook; and this, ultimately, leads to the de-democratisation of what is inherently a democratic medium where each participant starts on a relatively level playing field.

Let's take some recent examples.

Libel 

The basic principle is actually well aligned to principles of natural justice.  We should expect everyone to understand that it is simply wrong, morally and legally, to smear someone without proof.

Especially of serious crimes such as child abuse - smears that can lead to vigilante attacks and fundamentally alter lives.

But there are genuine areas where I'd guess that well over 50% of the population are understandably confused.  E.g. if you retweet, like or share a libellous post.

On one hand yes, it's clear the person doing this is contributing to the spread of a lie. On the other hand though, especially on Twitter, it's useful to retweet someone who you don't agree with just to show that person A is making a dumb statement.

Where the law gets even more unfathomable is in relation to innuendo and other "mischief".  Say you tweet the name of a person without context, in the hope of starting a trend that will provide the missing piece in a libellous jigsaw.

You might know a bit about libel law.  You might check your "publication" - your tweet - for correctness.  It might simply ask why a person's name is being mentioned.  On its own you might be sure that your tweet is not, as the lawyers say, "actionable".

Injunctions and court orders

Other cases could put a tweeter in the dock for mentioning something that is subject to a court injunction, without actually being served by the court or even aware of the existence of the order.

One recent case put the name of a child in the public domain in order to find that child. An order was subsequently imposed to prevent further reporting of the name in order to protect the child.

Now, journalists and those familiar with the law in relation to media reporting see it as obvious that a child would be protected in this way.  And privacy advocates argue it is right that privacy should be protected wherever there is no public interest to use a child - or anyone's - name in a public forum.

But the general public are understandably gob-smacked to find that someone's name previously plastered across the media now can't be uttered on Twitter or Facebook on penalty of a £5,000 fine.

Malicious Communications

Even legal commentators are surprised at recent legal action in the UK against people posting things online that others find offensive.

There is a worrying and growing list of cases where people have mocked the dead, particularly dead children and soldiers to make a joke or a political statement, and found themselves with a criminal conviction and in at least one case behind bars.

There is much to say on this in other contexts but I'll stop at a simple note in this post.

Conclusion

Conscientious citizens are understandably becoming wary about the public statements they make.

On one hand this is seen as a good thing. Some commentators are taking a rather simplistic line that the online world will be better if everyone thought before tweeting.

And a nudge in the right direction - there is a consequence for each of your actions - can't be a bad thing.

But this becomes a problem if the nudge becomes a shove so hard it dissuades people from participating in the debate.

When a conscientious majority are dissuaded form participating because the rules are unfathomable to mere mortals, the online debate will be steered by a minority.

On Channel 4 news last night a studio guest actually suggested it wouldn't be a bad thing if people just used Twitter to discuss life in general without, presumably, the political debate.

This made me fume, my wife will testify to the huffing.

The internet has the capacity to change the evolution of the human race in two ways.  In science and technology, through the sharing of ideas and developments instantaneously throughout the world; and in politics, where the news agenda is no-longer the sole preserve of an elite media clique and even the weak and oppressed can find a voice.

If ordinary folk sit on the sidelines for fear of transgressing laws they don't understand or even know about then the old media elite and their oft corrupt ways will simply be replaced by a new media elite.

The online message will be dominated by those who understand the law and those who don't care about the law (through e.g. being based outside the UK or having nothing much to lose through any court action).

Neither of these voices will necessarily be representative of society as a whole.

The upshot of laws designed to keep the old print and broadcast media in check might be to extend their reign, with a few notable newcomers.

I don't mean to be completely dismissive of established news-gathering organisations, democracy would probably be weakened even if one of my most hated news outlets went under.

But I want to see the "comment agenda" snatched from the likes of the Daily Mail, the Guardian, the Murdoch Press, etc and moved into the hands of real people. Instead of a millionaire paid by the Guardian telling me what it's like for a job-seeker on benefits I'd actually rather read it in a blog.

Yes, I *know* nothing discussed above prevents a blog on life as a job-seeker. But it will stifle the blog of an abuse victim, as it will someone treated unfairly by a corrupt organisation or politician.

In summary the "chilling effect" that many - especially in power - seem to dismiss as a mythical highbrow theory bandied around by free speech enthusiasts becomes reality when large sections of the population are afraid to participate in a debate for fear of not understanding the UK's laws on what you can and cannot say online.

If ignorance is no defence we at least need clear and concise laws.

@JamesFirth

3 comments:

  1. To my knowledge there are 6 people that share my exact combination of names (including middle name) - if the injunction prevents the naming of one, does it affect the other 6?

    The law should take into account "intention" much more than the accidental consquences of an utterance - especially libel. An unfounded utterance intended to cause material, physical or psychological damage to an individual is worthy of censure (pun intended!); But even objectionable and insulting posts should not be restricted and penalised - the law is not there to judge nice from not nice or mannered from bad-mannered (and yes, I'm aware that gauging intention is a veritable mindfield). Taking offence and trying to cause offence are very different things!

    We need to ensure that no one changes the freedom to speak our minds does not become the right to be free from criticism and free to get my way

    ReplyDelete
  2. It's ridiculous. The Newsnight commentator may believe that you're safe talking about life in general, like for example what you had for lunch. But what if you had McDonalds for lunch and it made you ill and you posited that McDonalds is bad for your health? McDonalds might decide to sue you. They have form: http://en.wikipedia.org/wiki/McLibel_case

    As David Allen Green likes to point out, we are all pamphleteers now. The law has clearly got it wrong.

    ReplyDelete
  3. By their logic, people retweeting abusive tweets they receive to show the world must be actually be engaging in self harm!

    ReplyDelete

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