Speak high, speak low

Jacob Rowbottom (late of Cambridge, now of Oxford) has written a fascinating article on ‘low level digital speech’.  It will appear soon in the Cambridge Law Journal, but a draft is available on SSRN, under the catchy title of To Rant, Vent and Converse: Protecting Low Level Digital Speech.  It’s a great read – and a very timely intervention in the debate on Internet regulation.  This post is my personal summary of some key points along with some responses – for the author’s own introduction to the topic, see his post at the Inforrm blog.

The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so.  For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed .  [On libel – the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts.  Actually, I’m optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]

From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech.  This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech.  Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 ‘third person effect’ work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more.  There’s also an intriguing argument about freedom of thought here, which I’m still chewing on.  My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.

One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only.  We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them.  On that, the statute book doesn’t fare very well.  The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.

I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003.  Rowbottom is rightly critical of its use as a catch-all offence (p 8) and, more broadly, of selective prosecution (p 9).  One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls).  It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed.  There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.

There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry.  The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it.  Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.

What will this article achieve?  I’d suggest a couple of things.  In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet.  In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13.  Indeed, the framework of high/low value could be capable of application in a variety of other contexts.

For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day).  The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I’ll be blogging about very soon, as I’ve just received my copy of his new book].

(FYI, the source (ish) of the title of this post).

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