Paris Brown, Free Speech and Social Media

The sorry tale of Paris Brown, who stood down as Kent’s Youth Police and Crime Commissioner even before she took office, has already been talked and written about a great deal. I don’t want to add much, just to comment a little on the implications of it for what we loosely describe as ‘free speech’. It’s a cautionary tale in many ways – but I don’t think that all the ramifications have yet been considered.

I’m not going to rehash the whole story – and nor do I wish to comment upon Paris Brown herself. What I do want to talk about is what happened to her – because I think it has significant implications for both free speech and indeed for democracy. Ian Clark, who writes the excellent infoism blog, has described at some length the dismal role that the Mail on Sunday played in the whole affair: effectively ambushing Paris Brown and then demolishing her in print, on the basis of her tweeting prior to being considered for the position of Youth Police and Crime Commissioner. That, in turn, has brought about a police investigation into those tweets….

So what’s the impact of all this on free speech?

Well, first of all, particularly given the huge publicity that the whole affair has been given, it might make ambitious teens think twice about what they tweet. If they have an inkling that they might want to do something even vaguely political in the future, they might control what they say on the social media…

Secondly, if anyone – with political ambitions or not – sees that the police are going to instigate investigations, or even prosecute (though I certainly hope it doesn’t come to that) people in these kinds of circumstances, they will also be likely to think twice about what they tweet.

Thirdly, as Rachel Rogers points out in her excellent blog, it reminds employers (and specifically employers like the PCC), that they have a duty of care which should extend to checking potential employees’ social media presences. If Kent’s PCC had been careful, as Rachel Rogers points out, they could have encouraged Paris Brown to prune her tweets – but they might also have chosen a different candidate. Kent’s PCC has been extremely embarrassed about the whole affair – and other employers of all sorts will have been watching the events with deep concern. There but for the grace of God….

This combination of effects is pretty devastating. Anything people tweet, anything they put on Facebook, is facing potential scrutiny by the press, by the police, and by potential employers. For some that will result in a heavy chilling factor – they won’t say what they might, and might even drop out of the social media entirely. Others may have a different but potentially equally damaging reaction – they’ll choose never to put themselves forward for any job or situation that puts them in the public eye, expecting (or even knowing) that they’d be hounded and demonised by the press, humiliated and even prosecuted.

Freedom of the social media…

One of the strengths of the social media – and of twitter in particular – lies in the freedom of debate, and the spontaneity of interaction. Do we really want to lose that? I don’t mean that tweets should be beyond the law – quite the opposite – but that the law needs to be much more careful, much more balanced, and much less aggressive. The DPP has issued guidance on prosecutions for public order and related offences – I think we need a change in the law, relaxing it in many ways, allowing much more freedom.

This feels particularly poignant for young people – and Paris Brown, for all her precocity, is still a child. Children need freedom – and need to be allowed to make mistakes and to learn from them. That doesn’t seem to be considered here at all.

The press and free speech….

What’s equally worrying to me is the role of the press. Much has been said – particularly by the press itself – about the threat to free speech posed by the kind of regulation currently being put forward as a result of the Leveson Inquiry. Some of this is justified – and we do need to proceed with care – but we should also be aware that the press itself produces a chilling effect on free speech. Actions like those of the Mail on Sunday over Paris Brown have precisely that effect – and make it very hard to see them as great champions of the crucial democratic force of free speech.

What can be done about it is another matter – but every time the press acts like this, it makes me feel more sympathetic to the idea of press regulation. Whether any kind of regulation would stop the likes of the Mail behaving in this way is another matter entirely. It may just be that we have to accept it. Speech is chilled, democracy is stunted, but that’s the price we have to pay for a ‘free’ press….

Don’t blame Leveson…

There’s been a lot of anger around about the new regulatory system for the press, even before the details have really been sorted out. Some in the press are calling it the end of freedom of speech. Many are angry and worried about the impact on bloggers and tweeters. Quite a few magazines and newspapers are already saying they won’t join the new regulator, even before the form of that new regulator has been announced. Some are saying that the ‘exemplary damages’ system that accompanies the Royal Charter may breach human rights – and may be challenged in the European Court on that basis.

Some of this anger may be well placed – and some of the challenges may have validity. The situation for bloggers is far from clear, and every attempt that is made to clarify it seems to make it muddier – the latest being an exemption for ‘small blogs’, without a definition of what a ‘small’ blog is. Is this blog of mine small, for example? Would it be determined by number of hits? By average hits? By number of unique visitors? All of those figures can be misleading. I still remain unconvinced that even if bloggers are covered by this law that there is really much to worry about from it. We have much bigger concerns, such as the use of public order and other speech laws (as I’ve blogged about before) but I can understand why people are concerned and agree that we need clarity and properly written law, making the situation clear and giving appropriate protection for bloggers and tweeters.

What I am clear about, however, is that many people are trying to lay the blame for all of these problems (and directing their anger) at the wrong targets.

Leveson isn’t really to blame. It seems clear that he doesn’t understand the internet very well (particularly given what scant attention he gave it in his report) and he does seem to have somewhat authoritarian tendencies where the internet is concerned, as his first speech after his report suggested. However, he was just doing his job – and in the most part doing it pretty well.

Much though it goes against the grain to say it, the politicians aren’t really to blame either: they’re just doing what politicians do. They’re following what they perceive to be public opinion, and acting in the usual way. For even David Cameron to end up backing this kind of solution, given his connections with certain elements of the press, the political pressure must have been pretty strong, and not just from the opposition and the Lib Dems. Yes, they could have drafted their proposals better, and yes they could have been more carefully thought through, and given more time rather than being hastily agreed at 2.30 am in Ed Miliband’s offices, but that’s still not the fundamental problem.

Of course they all had their parts to play, and they all should take some of the blame – but not that much. The lion’s share of the blame lies with one group, and one group alone: the press themselves. None of this would have happened if the press had not behaved abysmally – and what has happened would have been much less oppressive if some of the key elements press had shown at least some sign of humility. Instead, what we’ve seen these last few days has reminded most people of exactly why the press need regulation – and why there’s such an appetite for press regulation. The death of Lucy Meadows, so viciously monstered by Richard Littlejohn in the Daily Mail, and the hideous way that they reported her death, maintaining their transphobia even as they reported her death, was the most horrendous example, but it was not unique. They way that the Daily Mirror put a picture of actor Colin Baker, next to a story about a Dr Who sex scandal with which he had no connection was another awful example.

For those of us who study regulation it is a familiar cycle. When people or groups push the limits of bad behaviour, that’s when regulators swing into action. They often end up ‘over-regulating’, using sledgehammers to crack nuts, but if the nuts didn’t need cracking in the first place they wouldn’t do it. In my specialist field, that of internet privacy, it has happened again and again. The ‘right to be forgotten’, an idea that has caused consternation in some circles, would never have been brought into action if it hadn’t been for Facebook making it so difficult for people to delete their accounts. The ‘cookies directive’, the piece of legislation that brought about all those annoying warnings when you visit websites, would never have happened if behavioural advertisers (and in particular Phorm) hadn’t invaded our privacy again and again and again.

In all these cases, the ‘offenders’ were asked nicely to change their ways – and didn’t. All they did was metaphorically laugh in the face of the potential regulators, assuming they were out of reach, or untouchable. Regulators react to that kind of thing – and there are repercussions. Often those repercussions fall upon innocent bystanders – such is the case now with the responsible press, and many bloggers, potentially suffering as a result of the overreach of the regulators.

So yes, you can blame the regulators if you want – but don’t forget why all this came about, and remember who’s really to blame. Not Lord Justice Leveson. Not Ed Miliband. Not even David Cameron. In the end, it is the press that have brought this upon us all.

Leveson: Bloggers and the Royal Charter

One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true – and will set out here why. I should say these are just a few first thoughts – it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow. The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself.  We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…

So what about bloggers?

Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:

“relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:

i. a newspaper or magazine containing news-related material, or

ii. a website containing news-related material (whether or not related to a newspaper or magazine);”

“news-related material” means:

i. news or information about current affairs;

ii. opinion about matters relating to the news or current affairs; or

iii. gossip about celebrities, other public figures or other persons in the news.”

So, according to those definitions, many – perhaps most – bloggers would count as ‘relevant publishers’. Certainly I would say that my own blog – this one – would fit the definition. This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?

On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.

It may of course mean more than that in time – but we don’t know. We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed. It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.

What’s the difference between a newspaper’s website and a blog?

That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where does things like Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version – they were quickly scotched, but they were believable enough for a lot of people to accept them. If they had happened, should the Guardian Online have been regulated as though it were a newspaper?

If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.

What about those huge fines?

The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”

Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.

The real key is the idea of ‘exemplary damages’, introduced by the Crime and Courts Bill. That, however, introduces a different definition of ‘relevant publisher’. It says:

“(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material—

(a) which is written by different authors, and

(b) which is to any extent subject to editorial control.”

That means that individual bloggers are automatically exempt – but leaves the bigger bloggers like Conservative Home, Liberal Conspiracy and Guido’s Order Order subject to possible exemplary damages.

Personally I don’t think the risk is at all high – exemplary damages are highly unlikely to apply except in the most extreme of circumstances, but it is still something to be alert to.

…and anyway, blogs are already subject to the law

This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.

Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.

Keep vigilant

These are just some first thoughts – there’s a long way to go with this. Monday wasn’t the last word in this. Far from it – we need to watch very carefully and lobby very strongly if things seem to be moving the wrong way, but we shouldn’t be distracted and forced into a panic over anything at this stage.

Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.

Leveson: don’t believe the hype….

With Monday’s debate and vote looming, the hype over Leveson seems to be ratcheting up a few notches. Nick Cohen’s acerbic piece in the Observer, headlined ‘Leveson’s liberal friends bring shame upon the left’ is just one example. Given that those most closely involved in the debate on both sides are journalists, politicians and ‘media folk’ it should not come as a surprise that the contributions (again on both sides) are well-written, in prominent places in the media, and tending towards the hyperbolic.

If you believe Cohen and those on his side, the ‘pro-Leveson lobby’ are risking centuries of precious free speech just to make a political point, whilst if you believe Cathcart, Hugh Grant and the Hacked Off team, if we don’t implement Leveson we will be missing a historical opportunity to rein in the evils of the press barons and their abominable practices. Who’s right? The points made by both sides are well-put and seductive. Cohen’s right that we shouldn’t allow an opportunity to humiliate David Cameron and give the likes of Murdoch and Dacre a bloody nose to blind us to the risks to free speech of giving politicians control over the press. Hacked Off are quite right that what the press have done – and indeed continue to do – is often hideous and hugely reprehensible, and that just allowing it to go on without any action would be ridiculous. And yet I find it hard to get wholly enthused by either side of the debate.

Leveson wouldn’t be the end of free speech…

I don’t believe the ‘anti-Leveson’ argument for a number of reasons. First of all, because as I’ve argued before I don’t think the mainstream press that we have now bears much resemblance to a ‘free press’ – it’s just a question of who or what controls it, rather than whether it’s free. Secondly, I don’t think that what’s being proposed by either side will actually do much to fetter the press. It may control one or two excesses, but it won’t do anything that’s not already being done. We already have defamation and privacy law that impacts upon free speech, we already have huge editorial control that prevents some of the really important debates ever reaching the public eye – what’s proposed by Leveson won’t make as much difference as his opponents might think.

Leveson wouldn’t do much to control press excesses…

Similarly, I don’t believe the ‘pro-Leveson’ group either. Firstly, as noted above I suspect they’re deeply naïve if they believe that even the full implementation of Leveson would really do that much to curb the practices of the press – regulation rarely has the effects that people might desire, either way. What’s more, if they imagine that implementation of Leveson would turn the likes of the Sun, Mail and Express into responsible papers, they’re really living in cloud cuckoo-land. Regardless of Leveson, the Sun will still be full of rampant misogyny, the Mail full of vile anti-immigrant and anti-European rants and the Express will still billow out homophobia and Islamophobia. They’ll continue to demonise the disabled and those on benefits, twist the debate on Europe and shift the blame for all our problems onto the vulnerable and the innocent. They may not hack our phones, but they’ll still find a way to dig out secrets and private information – and ways that are technically legal, too. The data is out there – and they’ll find a way to dig it out and to use it in all kinds of horrible ways. If we think statutory press regulation will stop this, we’re deluding ourselves.

This debate is about politics…

The reality, it seems to me, is that this debate is primarily a political one – and almost nothing to do with free speech. It’s a chance for David Cameron to put clear blue water between himself and the Lib Dems – and a chance for Ed Miliband to give Cameron a good hiding. It’s Nick Clegg staking claim to a liberalism that his behaviour over the last two years in coalition have vigorously denied. It’s a chance for all three to position themselves in preparation for the long run-up to the 2015 election. Nothing to do with free speech at all. But then, to a great extent, free speech is moving on from the ‘press’…

Free speech matters…

All this is happening while the real ‘cutting edge’ of free speech is somewhere other than the papers – and is under threat in ways that Leveson doesn’t get close to. Free speech is in the hands of the bloggers and tweeters – and the question of how to ‘regulate’ them is still up in the air. Social media prosecutions are still happening – and though the DPP has issued new guidance that might liberalise it a bit, the proof will still be in the pudding. We don’t know what will happen – but none of the political parties has taken a good, free speech stance, obsessed as they are by Leveson.

Free speech is also in the hands of the protestors – and there are also few signs that any of the politicians are coming out properly in support of the rights of people to protest. Instead, there are prosecutions and crackdowns. If politicians of any side of the debate are really in favour of free speech, they’d be talking about this a lot more. Are they? Not really – and certainly not at anywhere near the level that they talk about Leveson.

For me, Leveson is to a great extent a distraction. However the vote goes on Monday, it won’t be disastrous for either side. There will be much more hype over the next few days – but we should take it all with a huge pinch of salt. We shouldn’t believe the hype – we should focus more on the real threats to free speech that are out there.