Right of reply, theory and practice in the EU

posted Jun 16, 2003

Euro-blogging & the Right to Reply [LawMeme]: The proposal establishes a "right to reply" for anyone criticized online. Web sites - both news sites and individually controlled sites, moderated mailing lists and even blogs could be required to give subjects of criticism the opportunity and ability to reply.

This is the first post I think I wouldn't have bothered with if I didn't have my communication ethics essay to back me up.

The "Right of Reply" to a communication isn't intrinsically a bad idea, but the implementation of the law is very, very touchy; if done incorrectly it can cross over into censorship very easily.

First, what's the goal? The goal is that for any given communication that contains criticism of some entity, there exists a mechanism for that entity to add its rebuttal to that communication in the future.

There are two big traps I see here. One is requiring the critic to host the rebuttal on their own site. The other is requiring that the critic be able to automatically add their rebuttal to all possible criticisms. Both sound appealing on the surface (at least from the point of view of the criticized), but both are a bad idea.

The critic should not be required to host the rebuttal because they should never be obligated to foot the bill for the reply. Any time you raise the bar for communication artificially, you lose some of the communication as people do not post at all rather then jump through the legal hoops. Suppose somebody "rebutted" with a 100MB image file, requiring the critic to pay potentially large bandwidth bills? Or sued when you didn't even have enough space on your web site to save the 100MB movie? While you could try to make rules about what is legit and what is not, it's better to duck the issue and require just a pointer to the rebuttal (a link on the web, a citation in written media, etc.).

Fortunately, simply posting a link is sufficient under the current draft. Score one for this proposal.

The ability to automatically add a rebuttal may also sound appealing and in many cases it's at least technically possible. But sites like jerf.org consist entirely of static HTML files. If you want something added to a page here, you have to contact me personally about it; there isn't even a hypothetical mechanism for adding content.

Fortunately, the proposal speaks in terms of notification and how quickly one must respond to notification, not automated addition. This seems like common sense but I'm sure that if the US Congress drafted this they'd try to work automation into it; as evidenced by things like the DMCA Congress loves to legislate the technology a little too directly sometime. (This comment will be further substantiated in what is currently the 11th chapter of the essay, where among other things I take the DMCA to task for being too technology-specific.)

Score two for the current proposal.

There's also the potentially thorny issue of identity verification; a large organization can afford to verify that the reply comes from the criticized entity, but it may drain a single person's time. It could even be a sufficient hassle to prevent the person from posting the criticism in the first place, at which point it becomes censorship. Globally speaking, it is far more important that people be able to say what they will and let the chips fall where they may then require people to provide platforms for other people to speak. Fortunately, the current proposal does not address this issue at all, so there do not seem to be any verification requirements.

As for comment on the specific proposal, it is interesting to note that in the current revised draft, the word "professional" was struck from several clauses, such as "professional on-line media". Also, the line "Aware at the same time that it may not be necessary to extend the right of reply to non-professional on-line media whose influence on public opinion is limited;" is explicitly struck. I think there's some recognition that the term "professional media" is about two or three years away from being uselessly blurry for legal purposes. (Note that my theories make no such distinctions either.)

In conclusion, despite the many traps and pitfalls in the various possible implementations, the proposal as it stands is a reasonable proposal, phrased in terms of requirements on communication, and not in terms of specific technology. In fact I confess a bit of surprise that it turned out that way. Cynical ol' me. I do think that things generally work OK with this "right", but of such things are cultural differences made.


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