No, you don't have a "right" to defame as you wish

A court in California has forced Twitter to release the details of an anonymous user accused of libel.

Cue huge media outrage. A few quick points:

• No one is saying he shouldn't have posted what he posted. If it turns out to be defamatory, a court of law will decide that in due course, and if his accusations are true, then the defence of justification will kick in and he will not be liable for what he said. He is not being gagged, merely being forced to take responsibility for statements he is making in the public domain which have a bearing on the reputation of an institution. 
• It is not at all "Orwellian" for the Council to bring action to protect their reputation. Forcing Twitter to release a user's details because someone wishes to bring a case against that user is not at all an attack on freedom of speech on the internet. The right to freedom of speech is not an absolute right; it can be legitimately restricted to prevent abuses. It is balanced with the right to defend one's reputation in public. There is no reason why the Council should not be able to know who to sue. It would be a deprivation of their rights of access to justice if anyone was allowed to make defamatory statements under the cover of anonymity.

This is just infuriating. If you don't understand how rights and freedoms function, don't refer to them to defend your argument. Do your research first. Classic example:

 "If a council can take this kind of action against one of its own councillors simply because they don't like what I say, what hope is there for freedom of speech or privacy?"

If you make a statement in a public domain, you cannot then claim that your 'privacy' is being breached just because your details are released to a party who wishes to sue you. And as stated above, freedom of speech is a right, but it is not the overriding right, and as the ECHR and various other judges have reasoned many a time, it must be taken in consideration and balanced with other rights.

And the way the Guardian have tried to shoehorn the Giggs injunction story in again is just beyond pathetic.

Follow-up will be posted next week.

Superinjunctions, and how we should control them

As much as I love the Guardian, there are a few issues on which I feel the editors are guilty of gross exaggeration and blindness to any point of view but their own. This of course is a problem that is prevalent across the political spectrum of media outlets, and the Guardian is by no means the worst; but as a paper whose alignment is fairly similar to my own, and which holds aspirations to journalistic integrity, as a faithful reader I feel their hyperbole threshold really ought to be lower. Amongst these topics are anything to do with China, for example (I shall most certainly be returning to this at some point, watch this space). Another of these relates to the so-called ‘superinjunctions’ which, we are told, are becoming more and more frequent. At least 12 this year served to the Guardian alone, apparently. 

The Digital Economy Act

I should have started this blog a long time ago and done my research/posted about the Digital Economy Act when it was still a bill going through Parliament. Well, to be honest, I was probably too taken by election fever and Cleggmania (yes, yes, I was one of those, and oh how I am repenting now) to focus on anything else. Despite the fact that none of its dispositions relating to illegal file-sharing (the only really interesting part: the other sections deal with miscellaneous issues such as the remit of Channel 4 and video game classification) have yet been put into practice (I shall explain why in a moment), the public at large needs to be made more aware of how this piece of legislation could affect them in the future. Therefore I will talk less about the cost impact for ISPs, and more about how it will affect the average filesharer. There are also implications beyond the immediate consequences of the substantive content which should be considered in greater depth. 

The Digital Economy Act 2010 is really a compilation of amendments to various other acts of Parliament. The sections we are interested in are sections 3-18, which amend the Communications Act 2003. I won’t bore you with all the details, but the main points of interest are split into two parts: the obligation of notification of infringement, and the proposed “technical obligations” (the scary headline-making part). 

Refusal of the application for JR of the DEA

Today, the judgment from the High Court came through refusing the application of BT and TalkTalk for judicial review of the Digital Economy Act 2010 (R on the application of BT and Talk Talk v Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) - read it here). A little background first: the Digital Economy Act, pushed through by the last government in its dying days with little thought or Parliamentary scrutiny, is an attempt to 

“make provision about the online infringement of copyright and about penalties for infringement of copyright and performers' rights”

Amongst a variety of other miscellaneous provisions.