Leveson And The Internet: Would Regulation Be A Good Thing For Legal Bloggers?

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By Alex Aldridge on

There was a brilliant cartoon in The Sun over the weekend making light of the fact that the internet was deemed worthy of only a single page of the 2,000 page-long Leveson report. Still, there have been suggestions that a new regime of press regulation could be extended to apply to bloggers, if they voluntarily opt-in…

The upside? Added gravitas, perhaps, for bloggers who become part of an official regulatory system, plus access to a new low-cost arbitration tribunal that would reduce the risk of a ruinous libel claim if they make a mistake.

But are these carrots worth it? UK Human Rights Blog editor and practising barrister Adam Wagner isn’t convinced.

“The opt-in is only useful if bloggers are entitled to the same incentives as press, but I’m not sure whether those incentives would work for many smaller operations,” he told Legal Cheek this morning. “The landscape is changing so quickly that this may all have to be revisited soon. But in the meantime, blogging and tweeting are on balance a force for good and should remain free from additional regulation.”

There’s more from Wagner on this subject in his submission to the Leveson Inquiry on blogging and social media.

In it, he argues that applying a domestic system of regulation to blogs would be “practically unworkable”, while also pointing out that there are already existing libel laws, and a system of self-regulation via social media, which keep bloggers in check. The relevant section of Wagner’s witness statement is below.

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

a. 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 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.

b. 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, 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 www.rate-yoursolicitor.com website that “The civil remedies currently available have recently been demonstrated to be an inadequate means of prevention and redress”.

c. 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.

d. 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.

e. 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”.