Sunday, June 08, 2008

Sunday Essay - Mark Steyn, the law and the future of blogging

I had not intended to do any blogging this morning because I had some deadline work to do. Getting up, I found that I was out of paper. So much for that plan, then.

Legal Eagle drew my attention to the Steyn case. In summary, in October 2006 McLeans, a Toronto based magazine, published an article by Mark Steyn, “The Future Belongs to Islam”. Legal Eagle summarised the core of the article this way:

Put briefly, its central hypothesis is that Western nations are declining in fertility and population, and do not value their own cultures, religions or achievements any more. By contrast, Islamic nations are increasing in population, and have a strong belief in their own culture and religion. The inference to be drawn from this is that Islam will “take over” the West if the West does not shake itself out of its ennui and fight for its culture.

The Ontario-based Canadian Islamic Congress (CIC) bought a case against Mark Steyn in the British Columbia Human Rights Tribunal for breaching s 7(1) of the British Columbia Human Rights Code.

Legal Eagle's post provides details of the case, with links, drawing out the problems that anti-vilification legislation can create. In short, it becomes a weapon for denying free speach.

I do not want to discuss those arguments here. Instead, I want to focus on two points, one minor, one major.

Andrew Coyne from Mcleans live blogged the trial. His blogging finishes:

There will be no more liveblogging. As I left the courtroom for the lunch break, i was taken aside by a sheepish-looking court official, who said that he’d just learned that I had been “broadcasting” from inside the courtroom. So had I. Broadcasting, I said? I didn’t have a microphone, or a camera.

No, he explained: but liveblogging counts as broadcasting. It’s not the computer that’s the problem. You can type away on it all you want. If you step outside to send it, that’s okay, too. But if you send text from within the courtroom, that’s broadcasting.

I had never thought of this, but I suspect that the official is right. Live blogging is broadcasting. If so, it may have some interesting legal implications.

This leads me to my broader point, the way in which blogging has further blurred traditional media distinctions. In so doing, it has introduced a number of new legal complexities.

As we all know, there are two parts to the conventional blog post, the post itself and then the comment section.

Within our own small blogging community we have discussed the legal problems that can arise from individual posts or comments where those comments upset someone. However, Mr Coyne's report of the proceedings in the Steyn case raises a further issue.

If I interpret him correctly, to prove their point, the CIC attempted to show that Mr Steyn's article had in fact led to vilification by quoting blog responses to the article with a special focus on comments.

In doing so they appear to have struck one problem, the way in which Google searches do not repeat themselves, so you cannot exactly replicate a search result unless you actually save a copy of the search itself. I have always been frustrated by this feature of Google. I can now see some virtues!

Putting this aside, the CIC argument makes a clear distinction between the content of a post including any comments on that post and subsequent dissemination.

Blogging began as an individual thing. With time, informal networks formed facilitating dissemination of views and cross-commenting. In the latest manifestation, the main media organisations have all added their own blogs. In doing so, they have complicated life for the rest of us.

With rare exceptions, the volume of comments on the media blogs dwarf the rest of the blogosphere. Further, the media blogs are cross-linked with other parts of the particular media group, feeding and being fed by other platforms. They also draw from and influence other parts of the blogosphere. Many of us have seen the way in which a reference on a media blog can lead to a traffic spike on our own blogs.

Obviously, the mainstream media outlets watch legal issues on their own blogs, as they do with any other platform. However, their focus is domestic, will this damage us? The broader effects are ignored.

Blogging has become main stream media in its own right, a medium like TV or newspapers.

Within the blogosphere, there is now a spectrum. On one side are still the independent, purely personal blogs chattering away. At the other extreme, the media blogs. Within are a wide range of blogs with differing structures (individual, joint, syndicated) and varying degrees of influence.

The Steyn case shows how responses within the blogosphere to a particular piece of writing, in this case a magazine article, may create legal issues for the piece of work extending beyond the exact content. The case also points to cross-border issues, in that responses on blogs in other jurisdictions may come into play.

No one can control these external responses. However, I think that we need to be aware of the fact that our game has changed, that we are now part of the mainstream media whether we like it or not. I think that we also need to be aware that one consequence of this is greater monitoring.

At one level we have already seen this in the way that particular bloggers in particular countries have become victims of state action. We tend to think of this in individual human rights terms. I would argue that we should also be thinking of such cases in terms of freedom of the press, of the rights of journalists.

More broadly, I suspect that we are looking at a new but still to be recognised legal sub-field driven by the interaction between the largely uncontrolled blogosphere and varying national legislation.

In all this, I also think of my own position as a person who writes to explain and influence.

I belong at the smaller end of the blogging spectrum. Not for me the glories of A list blogging. Yet I do try to write professionally and, from time to time, I do get quoted. So issues associated with the evolving nature of the blogosphere are of great interest.

If I had to summarise this post in a single line, I would say that all serious bloggers should be watching the outcome of the Steyn case as one small pointer to the future of the world in which we all live.


Marecllous made a sensible comment on this post that is worth reading. Neil, too, in Always remember your readers are human, so are other bloggers, and so are you… dealt today with some related issues. I say related because the concept of tone - the way we say what we say - is sometimes as important as what we say.

I know from experience just how imperfect a mechanism writing is. I try to write with as much clarity as I can manage, but am never sure just how much of my message is really clear.

Postscript 2

Never let it be said that the blogosphere does not work in real time!

Legal Eagle picked up this post with a footnote on hers. My thanks for the "excellent" LE. As I was writing, the other side of the scepticslawyer duo was writing Economics v Islam: a cage match, in so doing taking of her lawerly (is that a word?) to put on her libertarian one. This drew a response from LE in comments!

In the meantime, I noticed that I was picking up traffic from Mark Steyn's web site. This already carried a link to the dialogue between LR and I. Does the man never sleep?


Anonymous said...

One proverbial piece of advice for lawyers is "Always write as though a judge is reading over your shoulder," or (alternate form) "Imagine this letter being read out aloud in court." This is especially important when correspondence with an opponent begins to get aggravating and you are tempted to intemperacy or exaggeration.

Much the same applies to writing in the blogosphere. Once you put something out there it is public writing, and you have to be ready to face it coming back at you one day.

On another tangent, you might recall that careless monitoring of comments got the Daily Telegraph in to trouble (which ended up putting them to expense) when it whipped up a storm against those who gave character references for Patrick Powers.

Jim Belshaw said...

Thank you, Marcellous. I had missed the Telegraph matter. Your general advice is obviously sound.

One of the things, though, that interested me in the Steyn case is the way that third party comments came into apparent play.In other words, it is not just what you say (or think you say), but also what other people think you say or respond to what you say external to your own site or point of publication.

I lack the legal knowledge to make a legal judgement on this,but it would seem to be of importance.

As an aside, I admire the careful way you disect sensitive issues.

Anonymous said...

You are taking this matter far to seriously and reading too much into the situation. True, the actions of both the B. C. Human Rights Commission and the Canadian Human Rights Commission are an obscene outrage and affront to the English speaking countries of the world. However, you must understand that these are complete Kangaroo “courts” whose very politically correct existence is the product of Canada’s Liberal fascists. Fortunately, such unspeakable leftist scum do not control the real court system and this farce will be corrected by the regular courts in due course. The only real problem is that these vile thugs on the Commissions can create great expense and inconvenience, at public cost, for people who are simply exercising their civil rights of free speech and a free press under the Canadian Constitution. It is, perhaps, fortunate that these loathsome, un-democratic Commissions have finally gone too far and will now meet with serious legal correction.

Jim Belshaw said...

Thank you for this comment, halliburton. We can only hope so.

My concern with the implications of the case for blogging lay not so much in the Canadian details, but in the broader implications. Here I think that the case has been helpful in identifying issues that I had not properly focused on.

Anonymous said...

Haliburton said:
"this farce will be corrected by the regular courts in due course"

Don't be so sure. Canada has left-wing extremists on its Supreme Court, for starters. And the Court would have to overthrow the Keegstra and Taylor decisions that it made as far back as 1990.

Jim Belshaw said...

nv53 my lack of Canadian knowledge shows. What were the Keegstra and Taylor decisions that the Supreme Court made as far back as 1990?

Anonymous said...

Thank you for your use of the word "intemperacy". I wanted to use it in respone to a letter claiming breach of a duty not to disparage an officer of a previous employer of my client, who was guilty not of disparagement, but was intemperate in his remarks. I did not check the OED, but found your use.

Jim Belshaw said...

Interesting comment, drohrbacherh. Glad that you found the word of use!