The battleground for us media lawyers has shifted dramatically over the past five years. The online news and gossip services have stepped in to feed the public’s almost insatiable appetite for drama and scandal, when and where they want it! However, in tandem with these developments, there have arisen an alarming disrespect for laws and values. In the days of the traditional media, it was primarily an individual reputation that would come under attack. Nowadays the online focus is just as much on bullying, harassment and blatant breaches of privacy, which international laws often appear powerless in offering any form of realistic protection.
Today, there is a distinct lack of effective remedies available within the legal systems on both sides of the Atlantic. It doesn’t matter whether the culprit is a “man of straw” with nothing to lose or a deranged individual who will stop at nothing to vent his fury towards any individual who may have offended him. The same problems exist. And it is clear that this scenario is only likely to escalate with many of the more unscrupulous bloggers seizing what they perceive to be their “moment in time”.
Many of course hide behind the cloak of anonymity or in perceived safe havens such as the United States, which offer First Amendment and other protections in the name of free speech. However, even the US has in recent times learned to its cost that the online monster moves with such dramatic speed. Many times the damage is disseminated around the world in a few seconds before any steps can be taken to restrain publication. Julian Assange and Edward Snowden are both prime examples resulting from this unfettered approach.
So, can anything be done? Or do Government and citizen alike have to accept that the protection of privacy and reputation will soon become a thing of the past? Could the destruction of privacy be contiguous with the gradual demise of the print media?
The obvious solution would be for national judicial systems and governments to take a concerted international approach towards co-ordinating civil and criminal laws. International laws, reflecting the border free status of the internet could ensure the same level of protection wherever an online attack has been initiated or published. Unfortunately this can only be wishful thinking given the dramatically different attitudes towards freedom of speech and reputational protection around the globe. Such jurisdictional differences have been starkly obvious so far as defamation laws are concerned. However, I believe that the liberal approach adopted in some jurisdictions towards the protection of reputation has indirectly, but inevitably served to lower the online privacy barrier at the same time.
Rarely a month goes by without another scandal involving a breach of security or the release of confidential information. Lives have been put at risk and national security threatened. However, while there remains a lack of consistency between the approaches taken by individual countries around the world, there will always be a loophole or a safe haven for those deciding to breach their position of trust or misuse private information for their own ends or misguided altruistic beliefs.
Some countries are taking decisive action. This year New Zealand has criminalised Internet trolling involving harmful digital communications, which may be “truthful as well as false information, intimate visual recordings” such as nude or semi-nude pictures or video sharing without permission. Under the new law, any person found guilty of Internet trolls will face a sentence of minimum two years imprisonment. The Bill was passed by the New Zealand Parliament with an overwhelming majority of 116 to five. But will this act as a beacon for other countries / continents to follow?
What are the chances then of an extension to the Hague Convention or even this critical issue being raised at the next G7 Conference of World Leaders and what role can we lawyers play in encouraging international Governments to put this issue towards the top of the political agenda? We already have an intolerably high suicide rate resulting from online bullying. How many more deaths will it take to encourage a genuine international approach to dealing with the internet behemoth?
Recently, the Italian Parliament announced its creation of an international legal framework promoting freedom, equality and access to cyberspace for all. Notwithstanding the fact that this innovative approach has no legally binding teeth, the thinking behind the Declaration has been to encourage debate, while hopefully providing a starting point for other countries to consider their own position regarding internet regulation.
The Italian Government will bring this Declaration of Internet Rights to the Internet Governance Forum in Brazil in November this year. The intention will be to generate debate, if not a solution, regarding the need to balance free speech against the protection of individual rights. However, I firmly believe that consistency has to be the key here!
At the very least, this Italian Declaration of Internet Rights highlights the fundamental principles urgently required for effective regulation.
We, the legal profession, have much to offer in terms of both lobbying skills and sharing our expertise and experience from the front line of the battle.
Paul Tweed heads up the Media and Dispute Resolution departments of Johnsons and practices in the jurisdictions of England & Wales, Northern Ireland and The Republic of Ireland. He is also registered as a Foreign Legal Consultant by the State Bar of California.
By Paul Tweed head of Media and Dispute Resolution, Johnsons Solicitors