At the SCL Forum in September, Graham Smith spoke about the regulation of the Internet and what he saw as the best way forward. This article is an edited version of the views expressed in that talk. These are his personal views, not attributable to his law firm or to any client. A series of articles arising from the Forum will be published in the New Year – this one is very much for now as Leveson looms and decisions on the Communications Bill and social media prosecutions are considered.
In September 2011 the then Culture Secretary Jeremy Hunt trailed some ideas for the Communications Bill in a speech to the Royal Television Society. His theme was 'Boldness be my friend'.
A year later the Bill, like a distant galaxy, seems to recede faster as time passes. Part of its subject matter has been foreclosed by the Leveson Inquiry. The rump is uninspiring. The series of Communications Review seminars over the summer have left the distinct impression that the government has struggled to find anything worthwhile to include in the Review.
Things may change when the Leveson block is removed. Moreover, new issues have arisen in the last year. The opportunities to be bold may now chiefly be in areas that for one reason or another have not featured in the Review.
Two topics that Jeremy Hunt highlighted in his speech, neither of which has featured in the Review, were regulatory convergence and unlawful distribution of content.
ATVOD and regulatory convergence
On regulatory convergence Mr Hunt said:
'It cannot be sensible that at the moment newspaper operators find that their newsprint is regulated by the PCC, their video-on-demand is regulated by ATVOD and any TV content they do is regulated by Ofcom. …
if you [the newspaper industry] can come up with an industry-led model for press regulation that is sufficiently robust to have the confidence of the public, then I will support that as being the one-stop regulator for all the content that you produce, so that you won't end up finding, as you move towards IPTV, that you are being backdoor-regulated by Ofcom.'
We know now, following successful appeals to OFCOM by various newspapers and magazines, that newspaper VoD is not in fact regulated by ATVOD.
That does not mean that newspaper VoD is, to purloin a favourite metaphor of Internet antagonists, a lawless Wild West frontier that has to be tamed. Like anything else on the Internet and like all offline speech, newspaper VoD is subject to general laws. If there is an anomaly, it is that other 'TV-like' video on demand is still subject to the regulatory attentions of ATVOD, the self-styled Authority for Television on Demand.
ATVOD has come in for its fair share of criticism. Notwithstanding OFCOM's positive review in August 2012 of ATVOD's designation, ATVOD remains in many people's minds a strong contender for the title of Least Necessary Regulatory Body. The ATVOD scheme was introduced to implement the Audio Visual Media Services Directive. The Irish implementation of the AVMS Directive shows how it could have been done differently, devoid of a levy-funded regulatory superstructure – a few paragraphs of statute, a voluntary code of practice, a complaints procedure and power to enforce the law by injunction.
There must be a lingering concern that someone somewhere might think that ATVOD is a good model for regulating Internet content. ATVOD itself set out its stall in a June 2011 letter to Jeremy Hunt describing its credentials. The bold move would be to go in the opposite direction and remove any temptation to emulate ATVOD by abolishing it.
OFCOM and copyright
As for unlawful distribution of content, Jeremy Hunt's speech was mainly about copyright infringement.
'We need to nail right on the head this idea that tackling this problem is somehow an attack on Internet freedom', he said.
'J. S. Mill's definition of freedom was that we should be free to do anything we like as long as it doesn't impinge on the freedom of others. Well, stealing someone else's digital content is impinging on their right to earn a living from their work, and we need to recognise this.'
The concern of most Internet freedom advocates is not about the existence of copyright (albeit there is plenty of room for debate about its scope and attributes), but about the weapons chosen to combat copyright infringement, how and against whom they are deployed. Reciting the creed that infringement is stealing simply does not address this.
A precise, focused, proportionate measure that targets provably unlawful content and nothing else is one thing. A measure that threatens collateral damage to legitimate content on the Internet, that imposes costs on lawful Internet businesses and creates significant negative externalities is something else entirely. That is indeed an assault on Internet freedom.
It is therefore right and necessary to give the most careful and anxious scrutiny to measures proposed to tackle unlawful content, particularly measures against lawful intermediaries such as ISPs, search engines, payment processors and advertisers. It demonstrates no respect for Internet or any other freedom to adopt the sort of scorched earth policy that proceeds on the footing that any price is worth paying, any casualties are worth incurring, in the prosecution of a war on unlawful content.
Since Mr Hunt's Royal Television Society speech, and even before it, court decisions have shown that when rights-owners choose to make use of the laws and remedies already available to them, they can achieve results. Most notably, we have had blocking injunctions under s 97A of the existing Copyright, Designs and Patents Act. In the light of this the government has said that it will not proceed with the blocking injunction provisions of the Digital Economy Act. The rest of the DEA is looking increasingly expensive and irrelevant as it grinds towards kick-off in 2014. Now would be a good time to give the DEA a decent burial.
Criminal law and Internet speech
The last year has seen the Twitter Joke Trial and the appearance of the Internet troll, the latter followed by the inevitable demands for new laws to clamp down on offensive use of the Internet.
The Twitter Joke Trial ended in the acquittal of Paul Chambers (see Chambers v DPP  EWHC 2157 (Admin)), but s 127 of the Communications Act 2003 (under which the prosecution was brought) remains on the statute book. It contains even worse provisions than those under which Paul Chambers was prosecuted. For instance, it is an offence if a person 'for the purpose of causing … inconvenience … to another, sends by means of a public electronic communications network, a message that he knows to be false.' One can think of innocent practical jokes that could fall within that wording. You might think that no-one would be prosecuted for a joke. But now we know differently.
Recently the Director of Public Prosecutions has announced a consultation on guidelines for social media prosecutions. Welcome as this step is, it has the air of sticking plaster, of trying to make the best of bad legislation under the banner of public interest. The DPP said:
'In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained. But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest.'
Of course we have specific legislation to govern harassment (the Prevention of Harassment Act 1997), we have contempt laws for flouting a court order, and many other laws governing public conduct that apply both offline and online. Why, one might ask, do we need special legislation imposing more restrictive standards for speech over electronic networks? Why especially when (as suggested by District Judge Dalzell in ACLU v Reno in 1996) of all varieties of speech individual speech deserves the highest degree of protection?
However, it may not be enough to align online with offline. There is disquiet over the broad ambit of the Public Order Act 1996, s 5 of which is the subject of what now seems to be an overly narrow government consultation on the inclusion of 'insulting'. Quentin Letts delivered a robust defence of insulting speech in an article in the Daily Mail in May this year. Shashank Joshi returned to the theme in the Sunday Times, asking 'Why it is illegal to be an obnoxious boor?'. Advocating that s 5 be scrapped, he suggested that this is about 'consistency in the bedrock principles of a self-confident liberal democracy'.
Many will also argue that the making (and even maintenance) of grossly offensive remarks is not of itself a proper basis on which to ground criminal liability. As the DPP himself noted, the European Court of Human Rights in Handyside v UK (1976) 1 EHRR 2247, observed that the right to freedom of expression includes the right to say things or express opinions '…that offend, shock or disturb the state or any sector of the population'.
While the general law is not perfect and itself requires review, that is no excuse for worse laws aimed specifically at online speech. We should not persist with special criminal content rules for electronic communications and the Internet.
Max Mosley's prescription for the Internet
Max Mosley's submissions to the Leveson Inquiry went in the other direction, advocating more laws specifically aimed at the Internet. He made two proposals of particular interest: (1) A Tribunal with local speech adjudicators in every large city with power to deal with posts by individuals and equipped with the power to cut off Internet access, and (2) that any Internet post should be subject to the law of any country in which it appears. These would be part of a special Internet statute.
Mr Mosley's starting point is that individual speech on a mass scale is a problem, rather than something to be celebrated and cherished:
'The starting point is to recognise that the Internet is simply another medium. However it poses two novel problems. First, it is available to virtually the entire population, in contrast to newspapers where publication is at the discretion of editors. Second, it operates without regard for national borders and often with little regard for national laws.'
The better starting point is that of District Judge Dalzell in ACLU v Reno 521 U.S. 844. He pointed out that if there is a hierarchy of speech (broadcast, press, individual), then individual speech stands at the highest point:
'As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.'
Mr Mosley then slips into the language of control:
'These two problems have led some to suggest the Internet is incapable of control, at least in a free society, and can therefore operate outside the law. It is, they suggest, a sort of Wild West.'
But speech, especially individual speech, is not something to be 'controlled'. Rarely, speech can give rise to civil liability; even more rarely it can be subject to prior restraint; and wholly exceptionally, it may be the subject of criminal liability. Speech should be something in which you can engage without fear of a tap on the shoulder – all the more so when as an individual you decide to speak to the world.
Mr Mosley, like so many before him when speaking about the Internet, invoked the metaphor of the Wild West.
If the Internet does resemble the Wild West at all, it is not in the supposed lawlessness of either of them. It is in the danger from gun-slinging legislators who react to the latest offensive tweet and shoot from the hip without regard for the innocent citizens of the Internet caught in the crossfire. The danger is in clashes between national law enforcers who even now (let alone under Mr Mosley's proposal that each of us should have to comply with the laws of any country in which our posts appear) compete to impose their pet preoccupations on Internet actors. As Ian Taylor MP presciently said in a House of Commons debate on the Information Society in July 1997:
'I suspect that, between Governments, we still have a few battles at the OK corral to come. There will be some fairly vicious fights as Governments realise that the control and powers that they had previously taken for granted are slipping away. In those circumstances, as control slips away, there will be territorial battles and attempts to reimpose different controls. There will be exchanges between Governments which will create new rivalries.'
In the rush to impose controls on the Internet we risk creating overbroad and illiberal laws under which more and more speech becomes contingently illegal, with enforcement effectively reliant upon the good sense of prosecutors not to pursue it. Unable with any certainty to determine in advance whether what we wish to say is legal or illegal, we then speak at our peril with all the chilling effects that follow from that.
The bold Secretary of State's shopping list
So what should a bold Secretary of State do?
The bold course of action is to deregulate and free up the Internet. The bold option would be to say that we don't need, and should positively discourage, content legislation specific to the Internet. The bold course would be to say that we should minimise the use of prior restraint, avoid disproportionate sanctions, and take especial care to avoid measures that risk chilling legitimate content and speech.
The bold course would be to live up to the mantra that what's legal offline should be legal online, by acknowledging that general laws of content framed with due regard to freedom of speech - and nothing more, especially no special Internet statutes and no Internet content regulators - should apply to both offline and online content. That means repealing at least s 127 of the Communications Act 2003. The bold course would also include abolishing ATVOD in favour of the Irish AVMS implementation model, putting the Digital Economy Act out of its misery and rejecting Max Mosley's prescription for the Internet.
Graham Smith is a partner in Bird & Bird LLP and specialises in IT, internet and intellectual property law. His Cyberleagle blog is at www.cyberleagle.com. Note that these are his personal views, not attributable to his law firm or to any client.