law

This page looks at some legal questions regarding blogging, including defamation and censorship.

It covers -

• introduction
• defamation and objectivity
• censorship and spin

     introduction

Somewhat to the surprise of blogging zealots, concerns regarding blogs have not been addressed through a discrete legal code that seeks to address all issues or provide special privileges for "citizens of blogistan". There is no 'law of blogging'.

Instead, bloggers face the same legal challenges as other online authors, subject to a range of existing 'information law'. That law has a national (and on occasion provincial) basis: there are no international standards and restrictions (or protections) vary from country to country.

Overall, blogging is potentially affected by statute and case law regarding -

• defamation
• censorship (including blasphemy, suicide and hatespeech)
• confidentiality
• national security
• intellectual property (including copyright and trademarks)
• stalking, discrimination and bullying
• crimes such as extortion

     defamation and objectivity

As we have suggested throughout this site, publishing online does not occur in a legal vacuum.

There have been a number of defamation actions about statements in blogs, directed against individual authors and against internet service providers and content hosting providers, some of which have also faced action over alleged trade practices offences.

Sites such as LiveJournal have increasingly stressed 'being nice' and offered instructions for what to do if one member of the online community is "hateful" to other members, eg makes egregiously offensive comments, threats or 'stalks' another bloggers.

Scott Rosenberg at a 2002 UC event on blogging & journalism argued that

blogging is really an online media format, it's really not a movement. I view it as a form of writing and a form of media that's native to the Web. Journalists are already doing things with the weblogging tool that they wouldn't have thought possible a couple of years ago. That may be why you had some of that resistance at first, the sense that it was going to become institutionalized, and the purist ideal of the blogger as the lone word slinger, beholden to no one, would be placed in jeopardy.

One of the key issues facing the collision of journalism and blogging today is the question of editing. Blogging tools today don't allow for much of an editing process. Part of what attracts people to blogging is, no one can tell me what to write. Part of what journalists uphold as part of their tradition is that more than one set of eyes reviews materials before it's released to the public.

Brendan O'Neill commented that

If bloggers want to spend their time fact-checking the traditional media's ass, that's fine - and some of them even do it entertainingly. But when that becomes a major focus of blogging, it hardly points to a 'radical transformation' of the 'journalistic culture'. Blogs come across less as a revolutionary vanguard remaking journalism into something new and dynamic, and more like traditional journalism's poor cousin - putting it down, picking holes in its arguments, and generally having a good old moan about the Fisks and Krugmans of the world.

... if bloggers fancy themselves as cutting-edge 'new journalists' giving the old media a run for its money, they'll have to do more than post quickfire comments in response to already published material or breaking news or another blogger's comments about another blogger's comments. Perhaps they could start by generating some new content.

In a rare example of historical consciousness he suggests that

The rise of blogging on the web, and the way in which it has been hailed as a media revolution not only by bloggers but also by some newspapers, reflects recent shifts within journalism itself. In the traditional media, everywhere from the papers to the TV, there has been a rise in personal opinions and emotionally responsive journalism over objectivity and hard-hitting investigation. Of course, there's nothing wrong with opinion journalism, especially if the journalist has got something to say. But too often today, much opinion writing seems to be driven more by feelings and emotions than by insight or having a distinct argument to put forward.

Offenses aren't restricted to adults. An educator wrote in the Washington Post in September 2003 that blogs, like chat rooms, are "the latest sites of Internet cruelty" by children against children -

Blogs are cyber reality shows, widely read diaries that publicly detail the social drama and fluctuating emotions of young lives. They are often scoured for personal mention, and they spare no language or feelings ...This isn't likely to be some child of poverty or deprivation speaking. Internet bullying involves a population that is largely middle-class, usually known as the "good kids" who are "on the right track" or, as many school personnel told me, "the ones you'd least expect" to bully or degrade others. The Internet foments outrageous behavior in part because it is a "gray area" for social interactions.

... the Internet deletes social inhibitions. "It allows kids to say and do things that they wouldn't do face-to-face, and they feel like they won't be held accountable in the same way. It gives them a false sense of security and power." The kids themselves agree ... "E-mails are so much less personal ... They're so much less formal and more indirect, and it's easier for people to be more candid and even meaner because of that. People can be as mean and vicious as they want because they're not directly confronting the person. It's the same thing as when you're talking on the phone because you don't have to face the person directly. This is a step further removed. You don't even have to hear the person's voice or see their reaction."

The Post noted that

In matters of discipline, the proprietary nature of personal Web pages and blogs is pitting ethics against rights, or what kids know about bullying against what they know about personal freedoms of speech and intellectual property. When a child is reprimanded for negative or hateful speech on a personal Web page, she may invoke her right to write what she wants in a semi-private space. And the parents often go along. ... "Some parents are so concerned about respecting their children's rights that they see email as a privacy issue."

When a child is disciplined, the parent has two reactions. One is, 'Who gave that to you?' And, 'These e-mails are the private property of my daughter. You can't admit that evidence into any court.'

A later page of this profile suggests that teen blogging may be even more fraught.

     censorship and spin

Blogging is not situated in a historical vacuum and like other text is potentially subject to censorship on grounds of offences that encompass obscenity, secrets or political subversion.

The boilerplate for most blog hosting services features restrictions on the inclusion of erotic or other adult content. So far there has been little coverage of blog entries (or whole blogs) taken offline at the request of a service operator or direction from a regulatory agency.

Most media attention has instead centred on

• blogging as a mechanism for free speech - in particular South American blogs hosted in the EU or US
• government use of firewalls to stop citizens using external hosting to publish potentially dissident blogs, for example recurrent Chinese government blocks on Blogspot identified by Ben Edelman and filtering in Iran
• 'insider' accounts such as the 'Baghdad Blogger' Salam Pax, hyped as "the Anne Frank of the War ... and its Elvis".

Given the popularity of the Pax blog (adopted by the UK Guardian) we can presumably expect to see Wag the Dog style disinformation blogging - an extension of the growth of corporate blogs - in the next war.

Action to inhibit blogging has taken various forms, including prohibitions on blogging, mandatory registration of blogs and takedown orders. China, for example, requires registration of blogs, justified on the basis that

The internet has profited many people but it also has brought many problems, such as sex, violence and feudal superstitions and other harmful information that has seriously poisoned people's spirits

Accordingly

A net crawler system will monitor the sites in real time and search each web address for its registration number. It will report back to the ministry if it finds a site thought to be unregistered

In May 2006 veteran dissident writer Yang Tianshui was sentenced to 12 years in prison for subversion after he blogged in support of free elections.

Other regimes have simply frozen access on occasion. In 2006 for example the Indian national government forced service providers to cut consumer access to Blogspot, Typepad, Geocities and other sites after terrorist bombings in Mumbai. The federal department of telecommunications justified the restrictions on grounds of national security, claiming that it aimed to close 17 blogs that carried material from political and religious extremists.

Lawyer Sanjukta Basu lamented "This is a clearly an infringement of fundamental right" of free speech and noted that a 300-strong Delhi blogging community is considering a petition to the high court. The Indian establishment is presumably quaking in its boots.

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