Tuesday, 23 July 2013

Change in Jersey Law to Clamp Down on Blogs and Social Media

In "Top Gear", the three presenters were working on a home made hover craft. It had the chassis of a van, two powerful engines, one for upwards thrust, one for horizontal thrust, and a skirt to keep enough air underneath to make it buoyant. They powered up, and it seemed to rise, and then Jeremy Clarkson pushed it forward towards the river, and it promptly sank like a stone.
In the aftermath, as they contemplated the wreckage back in the studio, the blame game was in full force. The engines were not powerful enough said Clarkson. The skirt to capture the upward air was too small, said Hammond. And it was pushed forward into the water too fast, said May. Everyone had a different reason for the failure.
And that, of course, is what is happening now that the Electoral Reform has sunk. All sorts of reasons are being adduced for its failing to be passed by the States. Rather like the hovercraft, it is a joint catastrophe, and one that will continue to exercise the States members when they come back from their summer recess.
The summer recess is a wonderful mechanism for last minute matters. Times past, in the bad old days of Terry Le Sueur, all kinds of budget plans would be launched at the last minute, so there was no chance to ask questions before they were debated in the Autumn. It was said that it was to give States members time to read and reflect on it, but I've seen too many schools pull the same stunt to believe that - a notice given out on the last day of term, often to do with some kind of cut-back, so that parents can do nothing about it until next term, by which time it will be too late to do anything.
The latest one of course, is the "Personal Statement by Sir Philip Bailhache" in which he explains that he misunderstood what flight he was supposed to be reading confidential documents about the Dean and HG on, and was unable to remember if he actually was reading any confidential documents, although he believes he might have been.
"On that flight I do not believe that I would have been reading documents relating to this matter because I had read them in London, but I may be mistaken."
With a memory like that, he would clearly make a terrific "Minister for External Affairs"!
It reminds me of the time in "Yes Prime Minister" when Jim Hacker is casting aspersions on his predecessor who has just died:
Hacker: Say that he's trying to re-write history to make his own premiership look a little less disastrous. - Imply that he's going gaga.
Press Officer: Fine. Passage of time and separation from official records have perhaps clouded his memory.
Hacker: Yes. What about the gaga bit?
Press Officer: One would expect no more from a man of his age.
Sir Philip's own riposte that it is a "storm in a tea cup" on reading documents which seem to have revealed HG's identity is pure "Yes Minister". Another quote from Jim Hacker fits his response very well.: "Insignificant matter of no national importance. Typical of the media's trivialisation of politics.". It's all in "Yes Minister", which should be on any politician's viewing list.
Of course, matters may be very different in the future, and any criticism of Sir Philip online may be suppressed, depending on how it is presented.
That's because, slipping quietly by under cover of Ministerial Decision,(another "end of term" action)  is an amendment proposed for the Electronic Communications (Jersey) Law. That law itself is simply "a law to facilitate electronic business and the use of electronic communications and electronic storage, and to make other provisions in similar respects", it deals with how emails are dealt with in terms of legal validity etc, but nothing at all about blogs, tweets or social media.
But Senator Alan Maclean seems to be shoe-horning in something that really has nothing at all to do with the basic objects of the original law.
Amendment to Electronic Communications (Jersey) Law
Decision(s): The Minister approved drafting a Green Paper to consider amendments to the Electronic Communications (Jersey) Law to cover grossly offensive, malicious or threatening communications made over electronic communications.
Reason(s) for Decision: It has been identified that there is currently no law that covers grossly offensive or threatening communications made over electronic communications e.g. via email, on blogs or on social media.
Action required: Officers from EDD to draft the Green Paper in conjunction with the Home Affairs Department and Law Officers Department.
Now it is true that there are blog postings which might be considered offensive, but context is everything. In politics, and where politicians are concerned, there has always been a tradition of very robust debate, sometimes very deliberately offensive. Suppress that, and you are suppressing freedom of speech.
A member of David Cameron's team recently branded Tory supporters "'swivel-eyed loons". And someone called John Bercow, the Speaker of the Commons, a "sanctimonious dwarf", before apologising - to dwarfs.
But that's mild compared to some of the past masters of the art:
The style of all pestilential filth that hath infested the state and government of this commonwealth.
Sir Harbottle Grimston, British MP, on William Laud (1573-1645), English clergyman and Archbishop of Canterbury
A crafty and lecherous old hypocrite whose very statue seems to gloat on the wenches as they walk the States House yard. William Cobbett (1763-1835), on Benjamin Franklin (1706-90), American statesman and scientist
Filthy Story-Teller, Despot, Liar, Thief, Braggart, Buffoon, Usurper, Monster, Ignoramus Abe, Old Scoundrel, Perjurer, Robher, Swindler, Tyrant, Field-Butcher, Land-Pirate. Harper's Weekly on Abraham Lincoln
He spent his whole life in plastering together the true and the false and therefrom manufacturing the plausible. Stanley Baldwin (1867-1947) on David Lloyd George (1863-1945)
If a traveller were informed that such a man was the leader of the House of Commons, he might begin to comprehend how the Egyptians worshipped an insect. Benjamin Disraeli (1804-81), British prime minister and author, on Lord John Russell (1792-1878), British prime minister
If I am insulted, I can sue for defamation. But what this amendment is doing is providing the law with teeth to bring a criminal, rather than a civil case. It is like a revival of the law of criminal libel, abolished in the UK in 2010, in which the defendant is put in the position of having to prove their innocence.
There can be little doubt in my mind that it is sneaking in now because there is an election year in 2014, and there will be a strong attempt to curtail the very robust language used by bloggers.
Rico Sorda, for example, calls Senator Bailhache "an out of touch dinosaur." What if Senator Bailhache says that such a description of him is "grossly offensive". Will the new amendment to the law take action?
And what of reportage? Rico did a blog on a just retiring Chief Officer of Education, which was actually a cut and paste (with links given) of articles in the Daily Mail etc? It could be considered grossly offensive to the person named, but I would have thought there is a difference between making those accusations against him, and reporting the accusations made against him as already reported (and still online) by the Daily Mail, Irish Times etc. Are we to ban reportage in the National Media being repeated on blogs because that somehow gives it a local endorsement?
The devil will be in the details, but depending on how vague and wide-reaching this amendment will be if the green paper proceeds to a proposition, it will certainly be an ever present threat not just to the more intemperate bloggers, but to anyone. At present, a civil action for defamation (libel) had to prove its case, but the old criminal libel - as brought by Sir James Goldsmith against Private Eye, puts the burden off proof on the person accused. As what counts as grossly offensive is subjective, this is not a wise change to make. It is also unclear how any such change to the law would prevent anonymous "trolls" with false identities.
I hope that it will be open to consultation, and also assessed by scrutiny, and not just somehow pass through as an amendment without properly input from the public, and careful analysis by scrutiny.


Nick Palmer said...

"As what counts as grossly offensive is subjective, this is not a wise change to make"

Amen. The PBs of this world have such a giant sense of entitlement that they deserve to be in their position, that almost any criticism of them is seen, by them, as a form of treason. They too often identify their own views, beliefs and prejudices as those of the State.

Just because someone claims to be "grossly offended" by something, in no way means that whatever rattled their cage was actually grossly offensive at all. The offendee might just have had an over-sensitive ego, or a paranoid thinking mentality.

James said...

This would be bad legislation anywhere, but in Jersey - where charge is not brought by the police but by Centeniers - it is an open invitation to run a vendetta.

TonyTheProf said...

I diagree totally. The centeniers bring an independent scrutiny to any arrests, which cannot just be conducted by the police.