Internet regulation

The Raoul Moat ‘tribute’ web pages on Facebook led to much disgust and fury about the views expressed on them by the tens of thousands of ‘supporters’ of the murderer.

The Prime Minister expressed in turn his opinion that there was nothing commendable about the man. On this the Guardian believed the PM to be out of touch with social media in his condemnation of the Facebook page, but the Daily Mail pointed out this ‘instinctive’ handling of the issue. Their article contrasted it to the avoidance of opinion, yet reach-for-the-legislation approach of the previous government.

As the article pointed out, the internet is seen as the wild west, the frontier, where anything goes. Whereas, and you can almost smell the unfairness in the air, Daily Mail writers and others in more traditional media are regulated, by for instance Ofcom.

Jonathon Ross being a prime example.

Another is in a recently reported case, Regina (Gaunt) v Ofcom (Liberty intervening) in the High Court. Jon Gaunt, a talk show host formerly employed by the radio station talkSPORT was attempting to get a judicial review of a decision by the independent regulator Ofcom. Gaunt (supported by Liberty) claimed that the Ofcom decision against him breached his freedom of speech under HRA Art 10.

Gaunt had been in the Ofcom dock after members of the public submitted complaints to Ofcom following a live broadcast on talkSPORT where the claimant talked with a local politician, Michael Stark, a cabinet member for childrens services for Redbridge London Borough Council.

The council had proposed to ban smokers from becoming foster parents on the ground that passive smoking was likely to harm children.

Gaunt was known for his outspoken and aggressive style of presentation and this time degenerated into shouting at Stark calling him, inter alia, a “Nazi”, a “health Nazi” and an “ignorant pig”.

Sir Anthony May gave the judgement of the court. The claimant’s freedom of expression did not extend to gratuitous offensive insult or abuse, which had no contextual content or justification, or to repeated abusive shouting which expressed no real content. Ofcom’s conclusion was justified and did not materially interfere with the claimant’s freedom of expression. An inhibition from broadcasting shouted abuse which expressed no content did not inhibit, and should not deter, heated and even offensive dialogue which retained a degree of relevant content. Accordingly, the claim failed. The balancing act of Ofcom was sound.

Returning to the Mail conclusion that the PM is showing moral leadership rather than legislating, the thrust was that there are (a few) notable examples of people filing and winning cases about internet content, and as such the internet can and must be self regulating through the existing framework. The anarchism of faceless boys in their bedrooms can be defeated.

The laws are there, went the argument, and it is the threat of being punished under the laws that works in general not their application. All well and good, but the article continued…

On top of the existing laws, there is the little-known Electronic Trading EC directive of 2002, which gives all of us the power to fight back.

The directive gives providers of sites such as Facebook immunity from prosecution only if they act promptly to remove offending articles from the web when a complaint is made. Thus, if we want a ‘cleaner’ internet, it is up to us as individuals to complain about offensive material. Websites such as Facebook make it a simple matter to do so and they are compelled by law to comply.

Anyone who has experience in internet law knows that the notice-and-take-down procedure works well for complainants of alleged copyright infringement, and alleged defamation. But anyone who also reads the news knows that that Facebook page was pulled by its creator, not by Facebook, who did not feel it was necessary to pull it. Until a judicial or quasi-judicial body gets involved (and there is no Ofcom of the internet as we know), Mail readers can generate as many complaints as they like but it may just end up as moral urination into an anarchist wind. Unless the Mail puts its money where its mouth is, and sues Facebook?

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