Comment Articles

European 'news rights' are all wrong

Tags:
Right Of Reply,
Council Of Europe,
Internet

Declan McCullagh, CNET News.com CNET News

Published: 17 Jun 2003 16:04 BST

One of the finest days in Internet law dawned on 12 June, 1996, when US District Judge Stewart Dalzell wrote an opinion that was remarkable for its clarity and prescience.

At the time, Dalzell was serving on a three-judge panel that rejected the absurd Communications Decency Act as a violation of the First Amendment's guarantee of free expression.

Dalzell recognised that the US government's true fear of the Internet was not indecency or obscenity, but hypothetical worries about how "too much speech occurs in that medium." Dalzell and eventually the Supreme Court realised that the best way to foster the soon-to-be spectacular growth of the Internet was to reduce government regulation -- not to increase it.

Unfortunately, European politicians still haven't quite figured that out. The Council of Europe -- an influential quasi-governmental body that drafts conventions and treaties -- met on Monday to finalise a proposal that veers in exactly the opposite direction. (It boasts 45 member states in Europe, with the United States, Canada, Japan and Mexico participating as non-voting members. Its budget is about $200m a year, paid for by member governments.)

The all-but-final proposal draft says that Internet news organisations, individual Web sites, moderated mailing lists and even Web logs (or "blogs"), must offer a "right of reply" to those who have been criticised.

With clinical precision, the council's bureaucracy had decided exactly what would be required. Some excerpts from its proposal:

* "The reply should be made publicly available in a prominent place for a period of time (that) is at least equal to the period of time during which the contested information was publicly available, but, in any case, no less than for 24 hours."

* Hyperlinking to a reply is acceptable. "It may be considered sufficient to publish (the reply) or make available a link to it" from the spot of the original mention.

* "So long as the contested information is available online, the reply should be attached to it, for example through a clearly visible link."

* Long replies are fine. "There should be flexibility regarding the length of the reply, since there are (fewer) capacity limits for content than (there are) in off-line media."

It's pretty zany to imagine that just about every form of online publishing, from full-time news organisations to occasional bloggers to moderated chat rooms, would be covered. But it's no accident. A January 2003 draft envisioned regulating only "professional online media". Two months later, a March 2003 draft dropped the word "professional" and intentionally covered all "online media" of any type.

Pall Thorhallsson of the organisation's media division explained this move by arguing that bloggers and their brethren are becoming influential enough to be regulated as are their counterparts in the offline world. A 1974 Council of Europe resolution says "a newspaper, a periodical, a radio or television broadcast" must offer a right of reply. Most European countries have enacted that right, with a German law -- compiled by the UK nonprofit group Presswise -- that offers a typical example: A publisher is "obliged to publish a counter-version or reply by the person or party affected."

"Some online publications run by nonprofessionals can be very influential and therefore damaging to the reputation of other people," Thorhallsson told me. "It may be precisely against these (kinds) of publications that there is a need to grant a remedy. It's true that it may look burdensome for a blogger to be obliged to grant a right of reply. Some have suggested that a solution could be that individuals could make a deal with their service providers to administer the right of reply."

The United States once had a similar rule, which applied only to broadcasters, called the Fairness Doctrine. In a 1969 a Supreme Court case called Red Lion v. Federal Communications Commission, the justices gave liberal author Fred Cook the right to reply to criticism from a conservative broadcaster on Pennsylvania radio station WGCB. Eventually, President Ronald Reagan nixed the idea in the mid-1980s, citing the First Amendment protection of freedom of speech and the rule's possible "chilling effect" on controversial speech. (When faced with the onerous requirement of providing a right to reply, many broadcasters shied away from anything controversial.)

But even at the height of the Fairness Doctrine's popularity, the US Supreme Court never went nearly as far as have the Eurocrats. The justices never countenanced the idea of requiring print publications -- even very influential ones -- to be required to offer a right of reply. In a unanimous decision in the 1974 case Miami Herald Publishing v. Tornillo, the court struck down a Florida law that gave politicians a right of reply if a newspaper criticised them.

The reasons that gave the justices pause three decades ago illuminate precisely how poorly crafted and ill-conceived the Council of Europe's current proposal is today.

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