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Europe
Kafkablogging with the Council of Europe
2003-06-18
This has been making the rounds lately. Typical Euro-repression of free speech in the guise of "fairness" Edited for length
Why Europe still doesn't get the Internet
By Declan McCullagh
One of the finest days in Internet law dawned on June 12, 1996, when U.S. 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 recognized that the U.S. 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 realized 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, Europeans still haven't quite figured that out. The Council of Europe—an influential quasi-governmental body that drafts conventions and treaties—is meeting on Monday to finalize 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 $200 million a year, paid for by member governments.) The all-but-final proposal draft says that Internet news organizations, individual Web sites, moderated mailing lists and even Web logs (or "blogs"), must offer a "right of reply" to those who have been criticized by a person or organization. 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."
Pall Thorhallsson of the organization'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 U.K. 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."
[snip] This is all the more reason why fascistic punks like Orrin Hatch have to be stomped on here in the US. The Council is an important "stalking horse" for the Bureaubots of the EU apparatus, running up trial balloons for later unilateral implementation
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.) 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 criticized them.

Perry de Haviland at Samizdata replies:
We will not comply

We have a comments section on samizdata.net in which people can and do comment about what we write, but access to that comment section is at our capricious discretion. If we decide we want to IP ban someone or want to delete their remarks from our comments section because we think they are offensive, or even if they are not offensive but we just bloody well feel like doing it because we have a headache, then we bloody well will. This is our private property...

We utterly reject political moderation of free speech in civil society. This is not about giving people a voice but rather about replacing social interaction (which is what true free speech is), with political interaction mediated and mandated by the state.
I couldn't have said it better myself

Rantburg extends a "right of reply" via the comments section, but only because I damned well feel like it. If I choose to turn the comments off, that's my decision. I won't have the government tell me I have to do it if I want to have a website. I'd shut down first. Like Perry, I reserve the right to delete postings to or block access to my property. When there's a bureaucrat posting articles, another one editing, and another bureaucrat sitting next to me writing code, then I'll think about changing my opinion.

I almost forgot: And salary. To tell me what to do with my site, they'll have to write me a check every week. And I don't come cheap. And pay for my hosting. And software...

And I want a pony.
Posted by:Ernest Brown

#12  a pony? How about a stalking horse?
Posted by: Frank G   2003-06-18 21:12:54  

#11  


Aris,


Perry de Haviland at
Samizdata makes the relation of the two clear here:

"The proposed EU regulation of blogs and other forms of Internet speech being suggested by the Council of Europe (a quasi-governmental think-tank whose views have inordinate sway with the EU's policy making elite) is very revealing about what lies at the heart of The Great European Project."

Are you arguing that the Council of Europe's policy recommendations are -not- taken seriously by the EU?

The actual draft is here.
Posted by: Ernest Brown   2003-06-18 20:49:17  

#10  True German Ally,


Orrin Hatch has a long history of this stupidity. As for the Council of Europe's nonsense not getting enacted, I think that you are placing too much faith in the common sense and classical liberal leanings of EU bureaucrats, like the ones who brought us mandatory "pig toys."
Posted by: Ernest Brown   2003-06-18 22:50:09  

#9  Aris,

(Sigh) Yes, I know that the Council of Europe is not the same animal as the Council of the European Union, which -is- the EU's main decision-making body. However, the two organizations work together, as the following press release (note the date!) shows.




Posted by: Ernest Brown   2003-06-18 22:28:45  

#8  Ernest Brown> All I'm saying is that the Council of Europe has no official connection to the EU. Whether it has "inordinate sway" or whatever, as a "think-tank"... that's beyond my knowledge.
Posted by: Aris Katsaris   2003-06-18 21:48:38  

#7  Sent an email to Fred about this last night, would like to hear his take on this. I bet it'll be something like: "Cold day in hell"?
Posted by: Frank G   2003-06-18 11:29:55  

#6  Well, the Euros have Bill O'Reilly on their side...

For what nothing it's worth.
Posted by: someone   2003-06-18 11:15:23  

#5   Btw the Hatch proposal was the most stupid one I have heard from an US senator in years. Somebody better explain this guy how computers work.

Somebody needs to tell Hatch to re-read the 4th Amendment, too. Senatorial stupidity like that (and the recent comments of the junior Senator from NY) is why many Americans are learning NOT to trust their Government. A govenment of free people cannot stand without the people's trust. That's why the 2nd Amendment was included.
Posted by: Old Patriot   2003-06-18 16:35:51  

#4  "right of reply" to those who have been criticized by a person or organization."

This is of course absolute nonsense. This kind of "right of reply" doesn't even exist in the classic professional media. I can criticize anyone the way I see fit. He has the right to get a reply published if I say something which (the person says) is untrue. Let's say if I criticize someone for a policy he follows, no right to reply. If I print a fact about something that is not true, that person has a right to reply. Like: Mr. B met Mr. C on April 1st and he did not, right to reply (the editor might correct an "error" on his own or say he stands by his opinion (as long as it is not slander, no further right to reply).

If I say this person slept with his secretary than he can sue me for slander and if I can't prove it I'm in trouble.

Now I do believe that the same rights should be applied to professional online media. But to force a private website to publish replies is bogus. It might even be against the law (another law). German law says that you have to check your guest books periodically and remove illegal postings or you become liable for them (that makes sense if somebody posts a link to child pornography for example). In Germany you also must not link to sites that deny the Holocaust (U.S. fredom of speech goes further in that respect). Now if I published a harsh criticism of some neonazi who denies the Holocaust he would have the right to post a reply on my website? Yeah right.

Now if I post infamous lies about a person he can still sue me and rightfully so. Let's say I post an information that somebody regularily abuses his children and it's not true he can sue me. Private site or not, fair enough. (He could do the same if I said it loud in a restaurant.) That's where freedom of speech ends. I don't think we need a new law for that (he can already do so now and there is no anonymity that protects the poster). This draft has no chance of passing.

Btw the Hatch proposal was the most stupid one I have heard from an US senator in years. Somebody better explain this guy how computers work.
Posted by: True German Ally   2003-06-18 15:54:58  

#3  stalking horse - n. 1. a horse, a figure of a horse, behind which a hunter hides in stalking game. 2. anything put forward to hide one's true plans; pretext. 3. a political candidate put forth to conceal the candidacy of another person or to draw votes from a rival. [1510-1520] - Random House Webster's College Dictionary Rev. 1995.

via VikingPhoenix
Posted by: Frank G   2003-06-18 14:28:00  

#2  "The Council is an important 'stalking horse' for the Bureaubots of the EU apparatus"

I'm not certain what 'stalking horse' means, but just to make it clear - the Council of Europe has no connection whatsoever with the European Union, other than that they both include European states.
Posted by: Aris Katsaris   2003-06-18 14:03:12  

#1  Tried to get a comment on this from TGA (on another thread last night the "revisionist" one)would still be interested in getting his read.
Posted by: Hodadenon   2003-06-18 13:31:03  

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