My witness statement to the Leveson Inquiry – Part 1/2

29 February 2012 by

Not me giving evidence

Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. Yesterday it was “read into evidence”, which means I can now publish it. You can download the entire statement here, and I have reproduced (what I think are) the interesting bits below and in a follow-up post. The questions in bold are those asked by the Inquiry in their request. I have not been asked to give oral evidence.

The extent to which you consider what ethics can and should play a role in the blogosphere, and what you consider ‘ethics’ to mean in this context.

The definition of “blogging” is now extremely wide, so much so that the term “blog” has become in essence meaningless.

A blog can be a “web log” within the original meaning of the word, that is a “personal journey published on the World Wide Web consisting of discrete entries (“posts”)” (Wikipedia), but it can also be a news and comment website such as UKHRB, a photo-sharing website, a website promoting a business – practically any website can call itself a blog. Mainstream newspapers now produce “blogs” online and as such the boundary between traditional journalism and blogging has also become unclear.

The number of websites calling themselves blogs is phenomenal. There are now over 70m sites registered on WordPress alone, accounting for 800m page views each week. This is a significant proportion of the total number of internet sites worldwide.

Moreover, Twitter is often described as a “micro-blogging” site, and I would support this description. Twitter allows individual users to publish statements and is in effect a smaller-scale (in respect of length of individual posts) version of blogging within its original meaning.

In this regard, asking whether ethics should play a role in the blogosphere is akin to asking whether ethics should play a role on the internet as a whole. My view is that ethics should play a role, in the same way that ethics should play a role in society generally. However, I would not want to recommend any particular system of ethics. The range of ethics (or lack of ethics) on the internet is as broad as the range in society generally, which is unsurprising given that a significant proportion of the world’s population is online.

It is in society’s interest that people are free to follow their chosen system of ethics, as long as their system of ethics does not unduly impinge on the freedom of others. Maintaining this sometimes uneasy balance is the basic task of a democratic state.

That being said, I do think that a rough ethical system is emerging in respect of blogging and tweeting. This is not officially enforced by sanctions, but is unofficially enforced by other users. For example, one important principle of blogging is attributing (usually linking to) sources used in a post.

Do you consider yourself to be regulated and if so, how and/or by whom?

I am regulated by the Bar Standards Board and specifically by the terms of the Bar Code of Conduct. Blogging and tweeting are certainly caught by the Code of Conduct: a barrister was recently fined £2,500 for anonymously publishing inappropriate tweets during a trial, conduct which was found to be “likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”.[1]

I have argued that the Bar Code of Conduct and the Legal Services Act 2007 also place lawyers under a professional  obligation to increase public understanding of law through, for example, activities such as blogging.

The Inquiry would also welcome your views on the extent to which the content of websites, and the manner in which you operate, can be regulated by a domestic system of regulation

I do not think blogs can or should be regulated by a domestic system of regulation, for the following reasons:

Practically unworkable: Practically it would be impossible to regulate all blogging. Hundreds of thousands of blogs are set up each day, let alone posts published, and the term is so elastic (see above) that the task would be simply too large and amorphous for any regulator to manage. Even if only popular blogs were targeted, say those over a certain number of hits, what is to stop an individual blogger simply setting up a new blog in order to avoid regulation? I expect that such a system would be simply unworkable.

Current system works: The current system of criminal and civil law already provides a reasonable level of regulation. Bloggers – whether their websites are read by 1 or 1m people – are subject to financial penalties for libel or quasi-criminal sanctions if they commit a contempt of court. See for example the case of Elizabeth Watson, referred to be below, who was sentenced to 9 months imprisonment (later suspended) for breaching a court order through information published on her personal website. That being said, I also note a 1 February 2012 report in The Independent that Mr Justice Peart has said in relation to an Irish case involving the website that “The civil remedies currently available have recently been demonstrated to be an inadequate means of prevention and redress”.

Self-regulation already exists: Blogging specifically and social media publishing more generally (notably Twitter) is to a large extent self-regulating. As lawyer and journalist David Allen Green put it in a recent New Statesman blog post:

Regulation is just not about formal “black-letter codes” with sanctions and enforcement agencies. Regulation also means simply that things are done better than they otherwise would be: for example, when one “regulates one’s own conduct”. Bloggers and others in social media are willing and able to call out media excesses and bad journalism. The reaction is immediate and can be brutally frank. They are sometimes wrong, as are formal regulators. But they can take time and allow the media to produce better, more well-informed stories.

I agree with this and would emphasise that bloggers and others in social media are particularly willing and able to “call out” each other’s conduct too. The blogosphere and Twitter provide a vibrant, fast-moving and sometimes rather unforgiving arena for debate. As such, an enormous amount of self-regulation and correction already takes place.

This is to a large extent the whole point of social media. People enjoy observing a lively debate, and Twitter demonstrates the extent to which they are also enthusiastic to contribute. Moreover, the more prominent a blogger or blog post, the more it is likely to be the subject of comment and criticism. This is an efficient system as almost by definition the more influential a blog post, the more heavily it is peer-reviewed.

Significant risk of chilling effect: Notwithstanding the extreme practical difficulties with regulating blogs, the risk of doing so would be to limit the currently vibrant arena for freedom of expression which helps to keep journalists and politicians in check.

Already-existing regulation by other means: Some bloggers (such as lawyers and other professionals) are regulated by other means, thus bolstering the existing criminal and civil remedies available to victims of “bad blogging”. 

Do you consider that victims of “bad blogging” should be able to seek redress?

Potentially the most damaging “bad blogging” is a personal attack posted online. As stated above, there is already an array of civil and criminal remedies by which victims of “bad blogging” can seek redress, and a relatively effective means of self-regulation through social media.

Practically speaking, I cannot see how victims of “bad blogging” could be given more effective forms of redress except by tweaking the current rules. A formal system of regulation simply would not work.

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  1. ObiterJ says:

    I am struggling to actually see what “blogging” in general has to do with Leveson LJ’s inquiry. How does it come within his terms of reference? He is not there to consider the regulation of everything ever published.

    An exception to this would be “blogs” maintained by commercial media concerns such as a newspaper.

    Having said this, I think that general blogging should be conducted responsibly and in the spirit of general good manners. Nothing more is really needed.

    It is also correct that blogging is an activity which places one’s views in the public domain. They may be commented upon and, if needs be, criticised by others. When one comments on a specialist subject (e.g. law) the blogpost is often read by experts in the field and their comments act as a form of self-regulation. If we started writing utter rubbish then we soon be so informed !!

    In response to Common Law, I would simply say that bloggers are subject to the law and we do bear risk for the matters mentioned.

  2. For once I beg to disagree. What is needed is making the big business of blogging Google and WordPress responsible for braking the law in England and Wales. Currently they bare no risk they can publish libel they can publish material that breeches the Communications Act and the Harassment Act and contravenes article 6 and article 8 of the EU Humans Rights Law

    Bloggers can easily be encouraged to write what a responsible newspaper would never write. The Police are known to encourage bloggers to target suspects.

    It is a simple matter to stop the laws of England and Wales and the EU Human Rights Laws being ignored by bloggers make the Big Businesses responsible. Then the unlawful material will be removed pretty quickly. Nothing else will work.

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