December 14, 2012

Horse 1415 - Leveson, Tweeters, Bloggers and Me
The head of the British phone hacking inquiry, Brian Leveson, has called for tougher laws to ensure online journalists are subject to the same legal obligations as mainstream media.
Less than a fortnight after handing down his report into British press standards, Lord Justice Leveson is in Australia to discuss the changing face of journalism and how it affects the law.
He said if appropriate journalistic standards are to be maintained, more needs to be done to regulate those who work online.
"We will therefore have to think creatively about how we ensure that the law is capable of equal application, and is applied equally and fairly, against the mainstream media and bloggers, tweeters and other amateur online journalists," he said.
He warned that if changes were not made, there was a risk the established media would be tempted to cut corners or bend the law as it went up against amateur online journalists.
- via the ABC News Website, 13th Dec 2012

Lord Justice Leveson spoke this week at the University of Melbourne and amongst the things he talked about was that in an age where bloggers can pretty well much publish anything, they should come under the same constructs of the law as newspapers and other commercial media outlets. I say, what a top idea. The amount of new legislation required... is nil.

Unlike radio or television, you don't actually need a licence to start a newspaper, you don't need a licence to write or publish a book and you don't need a licence to publish a pamphlet or newsletter. In addition to this, you're pretty well much free to write whatever you like, provided you don't defame someone, publish lies and untruths and/or violate the protection surrounding certain things like court cases, official secrets etc.
The weird thing is that you're even allowed to print outright slander, provided that it is only mere abuse and therefore constitutes opinion rather than fact (for want of a better word). I could for instance publish that "John Citizen is a farty, trumped up little toerag, who probably eats bricks for breakfast" because unless John Citizen could actually prove a)that his reputation had been directly damaged and b)that some portion of that was approaching an outright lie as opposed to mere abuse, then I'd be totally in the clear.
I could not publish details about the ongoing civil case of Banana v Mango (2012) because something that I publish might have a bearing on, or prejudice the outcome of the case.
I could go publish details of how Mr Xxyzz who was a former official in the Republic of Elbonia, has bought property in Fan Fan (in the state of Eastern Australia) from funds that he embezzled from the Elbonian Government, even though it has serious implications for Mr Xxyzz because it is materially true.

Now I make mention of all this in relation to Mr Leveson because I really don't see how adding any new law is going to either improve the press or bring bloggers into some sort of order.
Leveson's enquiry itself looked at the press' dealings and how it acquired information, which was sometimes via unethical means. It never once suggested in almost 2000 pages of output that the basic freedom of the press to publish whatever it feels like (within those caveats) be reigned in or controlled at all.
If say a reporter from the Morning Trumpet (which is an hypothetical four million a day newspaper) suddenly decides to publish an independent blog, the law in essence does not change. The Press Council which is a purely voluntary organisation and the internal practices of the paper in question might no longer apply, but the law itself which is independent, has not.

Pretty much any publisher has an almost unfettered right to say anything, just like their rights to say anything. Publishing in principle is not much different to standing on the street corner in front of the Town Hall and spruiking to the passing crowds.
I know I do this a lot but I again refer to the First Amendment to the US Constitution which contains the right to free speech and the freedom of the press. The US Constitution with regards the law, changed nothing by its passing. British Common Law which is the source of law in Australia, has an underlying and unwritten principle that have more or less complete freedom to act how they choose unless by operation of the law. As far as the right to free speech and the freedom of the press goes, the US Constitution only described what was already in place and because we live in a country with no written bill of rights, that freedom exists by inference. John Stuart Mill's 'On Liberty' and Thomas Paine's 'Common Sense' were both written in an press environment of complete freedom and for the most part, that freedom remains untouched. If there was ever proof that a free press can shape or create a nation, the First Amendment certainly does not prove it, it was the environment which existed before they even thunk it up which does.

Although I completely understand the spirit of Mr Leveson's speech and his reasons for wanting there to be some sort of control in place over what bloggers write, I personally fail to see what improvement if any, any new laws are likely to make.
I personally think that people should have the right to say and publish whatever they like. Moreover I think that people also should have the right to choose whatever they wish to listen to, watch or read. I also think that people have the right to judge and make value judgements  both on content and the people who published them, based on what's written, spoken, filmed, whatever. People also have the right to be offended but being offended of itself isn't enough to demand the removal of publication. Some of the most offensive things written and said, changed the way society thinks and acts (both for better and worse). Of course there should be some regulation with regards about the appropriateness of the content and the space its viewed in but that's a separate issue.

Indeed Leveson himself provides ample example as to why the law with regards freedom of the press, free speech etc as it applies to tweeters and bloggers need not change even by an iota:
51. In the super-injunction example, the writ of the law was, perhaps, believed not to run against bloggers and tweeters. This is perhaps an example of the wider phenomenon I mentioned earlier: the belief that the law does not, and cannot apply to the internet. In many ways this is a pernicious and false belief: false because the law can be enforced against those who blog and tweet; pernicious because the idea that the law does not apply to some while it applies to others undermines the rule of law as it is inconsistent with the idea of equality before the law. Procedural justice requires the law to be equally applicable to all.

- Extract from Brian Leveson's speech to the University of Melbourne, 12th Dec 2012

I don't have a problem with this at all. I completely agree that procedural justice does require the law to be equally applicable to all. I don't see any conceivable reason why it currently does not. In NSW we have the Defamation Act 2005 and various acts such as the The Crimes Act 1914 and acts to do with Copyright etc. already cover civil and criminal offences. Commonwealth v John Fairfax & Sons Ltd (1980) even touches on the idea that there isn't really an official secrets act but the Freedom of Information Act 1982 and the Archives Act 1983 explain the obligation of civil servants when dealing with publicly held information.
Clearly there is enough legislation, remedies for breach and adequate defences at law. What really needs to be addressed is the proper enforcement of the law as it exists.

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