The Regulation of Information  

I imagine that we are all in favour of freedom. This is something our ancestors fought for and that we keep in mind when deciding who to vote for. But, at the same time, over the centuries, we have agreed to many laws that limit what we can do. There are of course our many criminal laws, but there is also the law of defamation - this penalizes us if we falsely accuse someone-else of doing something naughty.  But until quite recently, there was no privacy law in this country. That has changed in our computer age with its ability to spread information around in ways unheard of before: privacy is no longer just a problem for a few individuals, but for millions of people. Although you may not think so, there are strict rules which apply to the collection and use of private data.

But to reflect this new world and also to follow where other European jurisdictions have led, we have also seen an attempt by judges to create a privacy law for certain categories of litigants. It is based on the very flexible doctrine of 'general interest' (or lack thereof) to know something. The beneficiaries are mainly those who are wealthy and for whom the release of information on their ‘peccadilloes’ would be detrimental to their 'images' and therefore their 'value' on the brands' market. And then there is divorce. There is currently a difference of opinion among the judges regarding the level of publicity that is appropriate in divorce cases brought before the courts. This argument usually only arises in cases involving billionaires - who do not want to divulge their business affairs. So they are willing to pay their lawyers to request an injunction preventing the press from even knowing that their case is in progress. Normally there is a list of cases pinned up outside each courtroom, but there is a one High Court judge in particular who is easily persuaded to make an order anonymizing the list. This means in turn that the press do not even know of the existence of the order. And they cannot easily exercise their right to appeal against an invisible order. We look forward to the decision of the Court of Appeal which has been asked to decide how things should be dealt with. I hope that they will decide in favour of open justice. We no longer want a form of justice that can be bought by those, often Russian or Saudi, with deep pockets.  It is an important principle.

There is also an attempt to limit the power of the internet. I am not talking about its use by criminals who want to enrich themselves like modern day pirates taking hostage unwary internet users, such as the NHS. We've been fighting this type of crime forever. It's just its shape that has changed. No, I'm talking about something with its roots in the internet - social media. They have as their business model an absolute freedom of expression by their customers. Facebook, Snapchat, Twitter etc. say that they are only the providers of a platform for their customers to post their comments and photos. It is therefore for customers to self-censor the data they publish. At the same time, however, Facebook, for example, says it respects the law of every country where their services are available. This can involve some very strange sets of circumstances. For instance the legal uploading of photos in one country for all to see which could destroy someone's reputation in another country and in which it would actually be illegal to look at them. This is not a hypothetical example. The person I have in mind is due to become the king of Thailand following the death of his respected father a year ago. The son is known in the West for being a womaniser in extremis, someone living a life of excess in all aspects, of which there is ample video evidence. Let us put aside the question of hypocrisy inherent in this - why some people are trying to suppress photos which are evidence of a personality otherwise than they now want to depict. The reason runs deeper - the bad publicity would create many problems for the military junta in power if his character were generally known in the country of which he is now becoming king. Now, if the situation were different, for example a prince (let's call him Harry) with pictures taken of him playing pool in the nude in Las Vegas, there would not be a big problem with their publication in England. Why? Because unlike in Thailand we have not had, for many years, a law of lèse majesté. Which raises the question – What kind of laws should govern the material uploaded to and displayed by Facebook? It is not a simple matter to answer.

Before answering directly, we need to ask what we can say in the broader sense regarding the regulation of the structure of the Internet. We do not want its structure to be controlled by any government. The bureaucracy would get in the way of efficiency. We want technocrats in charge without an axe to grind save for the most efficient running of the web. And so far this is what we have managed to have. As for the content, you can imagine the situation if the US or Russia were in charge of what we could see or what we could do on the internet. And we would not even have much hope for its future if it were under the control of the United Nations. But avoiding governmental control of the structure of the internet does not mean that the State should not be involved in regulating its use. The internet is not above the law.

I, however, subscribe to the principle that the law should be the minimum necessary to enable a country to function democratically. So it seems to me that we must have the minimum possible internet regulation in a civilized society. I hope that we can all agree that a law designed to protect children from sexual predators would be a law in the 'good' category. But there is a problem even here, because the minimum age for marriage is not the same in every country. The perception of who should be protected is therefore variable. Fixing universally on the age of sixteen, as here, would not be acceptable in many other African, Eastern and Middle Eastern countries. Which means that social media would need to censor visible content on their platforms in a different way for each country. A technical difficulty, but I imagine it is not insurmountable. With the availability of the same technology, however, they could also be required to suppress anti-state comments for citizens of many countries, including Turkey, Russia, and many other dictatorships. Which for us in England would not be morally acceptable. Social media platforms may be required to go on to suppress criticisms of religion. Not only the Muslim religion, but also the Orthodox Church in Russia and the Hindu religion in India, are all protected by some version of the law of blasphemy. For me a law that specifically protects a religion would never be acceptable, in the same sense that I would not claim specific protection for my opinions.

In the end though we have to accept that we cannot directly control the activities in other countries of companies which provide social media. We have at our disposal only the relatively weak 'moral' pressure we can apply internationally to the Facebooks of this world, i.e. the effect on the value of their shares on the stock market. But we cannot accept in this country a social media which turns a blind eye to sexual exploitation or incitement to terrorist acts. These are perhaps the most important things, but we have democratically decided here that stirring up hatred based on race, religion, sexuality and so on, is unacceptable. And our law reflects it. Which means in turn that In my opinion we have to apply this law not only on the streets but also on the internet. If it costs Facebook, Twitter or other social media a lot of money to enable this to happen, then so be it. The least we can ask from them to justify their incredible profits is that they promote a civilized discussion, instead of the rage we see at the moment in the comment columns, hidden under the disguise of anonymity.

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