What Can You Say Online?

The Economist recently addressed the chilling effect that libel law is likely to have on Twitter, arguing that: ‘Now it [Twitter] seems to fall under the law’s shadow to a greater extent than similar speech does on the offline world’ (November 24, 2012: 37). But it is not simply libel law that could undermine freedom of expression online, it is also criminal laws addressing speech in largely pre-Internet aware days.

Taken together, Internet users – three-quarters of the British public – must be wondering what they can say online. For those in doubt in the aftermath of some actions taken against Twitter users and other online netizens, you may find a recent blog by Roger Darlington to be a helpful place to start in thinking seriously about this question.

Roger Darlington, a former member of the Consumer Panel at Ofcom, has posted a blog, entitled ‘What can’t you say on the Internet?’. He lays on the various viewpoints on this question, as well as UK legislation of relevance. You can read his blog at http://www.rogerdarlington.me.uk/commswatch/?p=4647 Take a look at Section 127 of the Communications Act of 2003, along with Section 1 of the Malicious Communications Act 1988.

I hope you read this for yourself, but Roger argues that a strict interpretation of UK law could underpin ‘a staggering amount of content to be prosecuted under the criminal law.’ This leads him to conclude that it is time to modernize law and regulation. From his perspective, which I share, there is a need to protect speech online such that people are not subject to inappropriate or disproportionate punishments for such things as tweeting a bad joke or expressing a viewpoint that might be viewed as malicious or indecent.

Consider Roger’s viewpoint and let me know if you have a constructive view on this topic. Roger believes there should be more consistency across media, while I believe that the different communication infrastructures are different in ways that require unique regulatory frameworks. It may be that striving for consistency has led to this disproportionate coverage of online expression. In any case, I agree that this issue will only grow in importance as more communication shifts to the Internet. Consumers need to know what they can and cannot say or this uncertainty alone could have a chilling effect on speech.

There will be an increasing array of issues driven by the convergence of media and the Internet. Content regulation is certainly one key example of such an issue. Over decades, standards of expression on television have become relatively well understood, even if they are sometimes breached and the subject of complaints. But the Internet is not television and is not and – it seems to me – cannot be regulated like television. As but one example, 72 hours of video are posted on YouTube every minute, and this is only one of many video sites on the Internet.

I hope you find Roger’s blog helpful – eye opening – in framing this issue for consumers and netizens. It also provides a nice example of law not keeping up with technological change, and becoming an unintended but unanticipated constraint on technological change. If I have this wrong, let me know.

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