Why Europe still doesn't get the Internet

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."

While the Council of Europe is very influential and its proposals have a tendency to become law, that outcome is not guaranteed.

It's pretty zany to imagine that just about every form of online publishing, from full-time news organizations to occasional bloggers to moderated chat rooms, would be covered. But it's no accident. A January 2003 draft envisioned regulating only "professional on-line media." Two months later, a March 2003 draft dropped the word "professional" and intentionally covered all "online media" of any type.

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."

U.S. history
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.)

But even at the height of the Fairness Doctrine's popularity, the U.S. Supreme Court never went nearly as far as have the Eurocrats. The justices never countenanced the idea of requiring print publications--even very influential ones--to be required to offer a right of reply.

The United States once had a similar rule, which applied only to broadcasters, called the Fairness Doctrine.

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.

The reasons that gave the justices pause three decades ago illuminate precisely how poorly crafted and ill-conceived the Council of Europe's current proposal is today.

First, a right of reply penalizes an Internet speaker or publisher. It takes time to receive a reply, to edit it for space, and to verify that it actually came from the person being criticized. In many cases, the cost may be minimal, but in marginal cases, it is likely to stifle robust political discussion--which lies at the heart of a democracy.

Second, the proposal substitutes an unelected bureaucrat's judgment about what material is appropriate for a mailing list, a chatroom or a Web log for the judgment of the person who first created the resource. There are other checks and balances than this kind of rough-hewn approach, such as readers eventually recognizing that a publication is biased or prone to errors and thus turning elsewhere for news and opinion. Besides, for many bloggers, it's already common practice to swap links with critics.

Third, the council's plan is unenforceable. Even today, Ireland, Portugal and the United Kingdom have not enacted a right of reply for traditional media, and it's a good bet that they won't for the Internet, either. A Euroblogger who wished to cloak his identity could set up an account in one of those countries--or in the United States.

It's worth noting that the council has done some worthwhile work in other areas. On May 28, it released its "Declaration on freedom of communication on the Internet," which urged governments not to mandate blocking software and to preserve anonymity. Then again, the organization can be entirely too censor-happy, as when it approved a ban on Internet "hate speech" last year. Its creepy cybercrime treaty would be a boon to the police and the national security goons who make up the world's eavesdrop establishment.

While the Council of Europe is very influential and its proposals have a tendency to become law, that outcome is not guaranteed. After this week's anticipated approval by a working group, the full council will vote on the scheme, which will then be submitted to the member nations for final approval.

Then again, Eurobloggers who wish to use their real names may be out of luck. For better or for worse, Europe lacks a First Amendment and the respect for limited government, private property and free enterprise that America still enjoys. And Europe sure doesn't have a Judge Stewart Dalzell, who correctly predicted seven years ago that "the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."