I finished a recent post on the subject of social media with the following realisation:
Given that the above-mentioned corporations are all nominally American in approach, mentality and ways of thinking, if nothing else this all goes to show us how difficult and challenging it can be to transplant at a global and online level behaviours which other legal jurisdictions take for granted.
I always thought when we spoke of oppressing freedom of speech that we were talking about developing countries in the Third World.
I now realise that there is a reason people call the United States the “Land of the Free”. In many freedoms, they do clearly fall down on what their people deserve. But in speaking their minds, they clearly do not.
We here in England have a lot to learn.
Too much for us to properly learn it in my lifetime, I fear.
Now in that piece I chart my sudden awareness that the figure of free speech in my homeland is highly limited by English law on defamation, where the onus in any case is on the defendant not the plaintiff to prove the truth or otherwise of any statement. The most recent example whereby free speech is clearly not contemplated in such an environment is obviously in relation to the Lord McAlpine case, where it would appear his lawyers are operating entirely within legal structures many of us simply did not realise existed. An overview of one aspect of what is being pursued here can be found at this interesting post, which examines the technicalities of – in this case – Twitter retweets: the forwarding on, and implied (or otherwise) intentionality behind such a forwarding, of other people’s remarks to your followers. It would appear that Lord McAlpine’s legal team are looking to argue that retweeting implies acceptance of and agreement with the content so communicated. The frame which is presumably being used is that of newspaper publishing – with all that such a frame implies from a legal point of view – but I am inclined to believe this is wrong for several reasons:
- Twitter is in many cases the online version of that gossipy office or neighbourhood grapevine – only globalised somewhat. That the offline world generally tolerates without recourse to due legal process such gossip should make us think twice about making the virtual equivalent tougher than its progenitor.
- Twitter is – more and more – also a vast debating chamber of hugely beneficial democratic input. That ministers and governments various across the world are finding it resistible should make us think twice about limiting its freedoms.
- Twitter does not earn, for its users and generators of content, very much – if any – tangible income. Yes, it’s great for networking, which – arguably – leads onto tangential money-making opportunities. But unlike the newspaper model so many online lawyers will at the moment be eager to allude to, the vast majority of tweeters who might amateurly fall foul of English defamation legislation will not be making a living out of doing so – nor will they earn anything directly from their continued stream of tweets.
But more important to a wider constituency than the McAlpine case mentioned above is surely the fact that these recent events – as well as those to come – show us that speech in England is anything but free. And I wonder, as a result, whether we shouldn’t ask the following question: is it time to get serious about free speech here in England?
Will future libel and defamation cases on Twitter, Facebook and other social media need a two-pronged defence of erstwhile and clearly ignored freedoms here in England?
Firstly, that the onus and burden of proof about the incorrectness of a statement should fall on the plaintiff and not remain the responsibility of the defendant. That is to say, we should be innocent until proven guilty – not guilty until proven innocent.
Here we need, then, to change the law.
Secondly, that those companies which have turned the erstwhile client (that’s you and me, I mean!) into product – product which generates income for the former on the back of the latter’s freely created tweets and input, produced in those environments such companies deliberately enable – should also face a certain kind of music when it comes to legal action, given that their business models rely on interesting and even scandalous information being continually generated by their product.
Without such software, nothing – of course – could be republished. Without such algorithms or ways of connecting people, directly engineered by such corporations, nothing would become visible.
Here we need, then, to change the focus of our legal action.
And with a degree of substantial urgency, I think.
Alternatively, of course, we could simply decide to follow the US tradition of almost incontinently free speech. The downsides are clearly manifest, of course, but in the light of recent revelations in England, and our creeping understanding of how many rights we don’t actually have, I think I’d rather follow the Americans down their route of incontinence than continue with this very English constipation of public discourse.
What say you? A wholesale re-examination of what free speech should mean – rather than what it has, wearily, come to mean?