By John Charles Dyer, UK Correspondent
19 Nov 2012. It must be a full moon. The wolves are running. They bay for a starless night.
Buzzing up "Trial by Twitter"
The chorus reporting “Trial by Twitter” grows. Sky News is the latest. Other major media outlets have also reported consternation and disapproval for the "raucous" Twitter environment. One must wonder at such "stories" -- some thinly disguised editorials, IMHO -- questioning Twitter's expressive freedom. The Press is entitled to its opinions, of course -- subject to the criticism they come from organizations whose owners and editors regularly demand unfettered and unregulated “freedom" for themselves.
Channel 4 News, on the other hand, took a more de-escalating approach. It isn't about either unrestricted freedom or no freedom at all. It is about responsible freedom.
Freedom in a civilized society means responsible freedom, not anything goes. We are not free to yell “fire” in a packed theatre, invade ordinary citizens' privacy, defame even public figures (oh so tempting as it may be) even in the US unless an innocent error based in a reasonable belief as the truth of the underlying facts -- or sometimes ordinary negligence. There are limits. A civilized society must balance the just rights of the speaker with the just rights of the spoken against.
I agree with thus tempering freedom.
Tweeps may offend against that balance from time-to-time. But the answer isn’t to shut Twitter down. Nor is it to intimidate Tweeps into silence -- any more than it is to shut down the Free Press or intimidate it into silence.
An imbalance in access and power
There is a certain imbalance in access and power Twitter addresses. It gives voice to the voiceless, power to the powerless, hope to the hopeless. Most personal Tweeps cannot afford to match attorneys, process, discovery and access with the powerful who Tweeps seek to hold to account, who sometimes seek to insulate themselves from being held accountable.
Twitter serves a vital role as forum and petition for the governed. It provides direct lines of communication between the ordinary man in the street and the elite. Kind of an extended BBC Questiontime with infinite panel, participants, and ongoing time slot. If you believe in democratic Western values, surely this is a good thing -- to be protected and encouraged within basic bounds of civilized society.
The Big Chill
I am no expert on US defamation law much less UK. But if British law is as described by persons who claim to know, then it appears to strike a different balance than the US strikes. It appears there may not be a “malice” defence.
I find that hard to wrap my head around, but that's what I'm told.
Disclaimer: I am not offering legal advice, only repeating what knowledgable persons reported in Tweets and blogs. I do so only for context in expressing an honest opinion as to the proper balance on Twitter between rights and freedom.
If these statements are correct, the system puts the ordinary man in the street at considerable disadvantage in holding his government and public figures to account. The man in the street is unlikely to have the resources to investigate and be 100% certain of his facts. I am not writing about someone who continues in the face of confirmation his facts are erroneous. I am writing about someone who repeats allegations that have not yet been resolved, demanding their investigation. If one cannot do that without risking the lawyers of the wealthy and connected (not to mention liability), free speech -- and indeed democracy itself -- are considerably chilled and handicapped.
Of course, in the current frenzy it may be folks exaggerate to make a point, but if so it is an exaggeration that those with limited resources must take seriously at face value. Governments can muck about inviting precedent-setting litigation. Just folks can't.
Tools for democratic accountability
Famously, politicians have term limits called "elections." But democracy needs more tools than elections.
Democracy needs both forums and devices by which ordinary citizens can access government, present views, and demand accountability for perceived wrongs -- without triggering the heavy weight of an elite pocketbook and a deck stacked in the elite's favour. That is, if one believes in democracy.
In addition to apparently much stricter liability for defamation, the UK doesn't have some tools with which Americans have become familiar. It doesn't have a written constitution or seem to have the equivalent of 32 USC 1983, the Private Attorney General Doctrine, or a citizen Grand Jury review of local government operations.
All of these enhance democratic accountability in the United States.
The UK should consider the usefulness of these tools
A written constitution may not be as useful as the others. The UK has the common law "Rights of Englishmen." So much of the Bill of Rights was based on these "fundamental rights" many argued at the time there was no need for a Bill of Rights. And any written constitution is only as good as the willingness of governed and governing to abide by it. Arguably the USSR under Stalin had an enlightened written constitution.
But 32 USC 1983 is a priceless tool. Briefly, it makes a public official accountable for trampling on citizen rights by putting enforcement into the hands of the private citizen in the form of a specific federal claim which carries specific remedies and attorneys fees.
Under the Private Attorney General Doctrine State Legislatures provide citizens a private right of action to enforce public obligations and statutory fees over and above damages to help the ordinary guy pay for the litigation. It is a right handy device for jurisdictions too cash strapped to fund government enforcement.
Every year citizen grand juries convene to review the work of local governments. They meet in secret to consider audits, other submissions, and testimony. They take action where appropriate and report findings to the public.
Together, these three tools help make US democracy what it is today. I'm not arguing the UK should reinvent itself as the US. I quite like the UK. But it has become crystal clear to me its citizens, government and indeed its politicians want to find vehicles for democratizing "process." They could do a lot worse than adapt these 3 tools to the UK.
But leave Twitter and Pleb Tweeps alone. It is far too valuable a force for democritic dialogue and accountability and a safety valve for stirred passions.