Against regulating the blogosphere

Yesterday in Parliament, Justice Minister Simon Power announced that he had asked the Law Commission to look at ways of regulating the blogosphere. The reason?

“It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.

"Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

These are all things worth looking at, because the law needs to keep up with the technology (if it can). But Power is fundamentally mistaken about two things. First, he's fundamentally mistaken in thinking bloggers should be treated as if they were professionals, because we simply aren't. The typical blogger is a private individual mouthing off on the internet. Some of us know a little about what we are mouthing off about, some of us don't - but fundamentally, its no different from people talking in a cafe. The government wouldn't dream of trying to regulate and force "professional standards" on that, and rightly so. So why is it trying to regulate and force professional standards on the same conversations in the blogosphere? It smacks of another example of the old problem of things being suddenly scarier the moment you attach the word "internet" to them.

Secondly, the claim that we are not subject to any form of regulation is simply false. As a blogger, I'm subject to exactly the same laws as Power is in issuing his press releases. If I defame someone, I can be sued. If I publish objectionable material, I can be prosecuted. If I breach a court suppression order, I can be fined. Rather than showing that the blosophere is a "wild west", the recent Whale Oil case showed that the law is perfectly capable of dealing with it.

The problem for the justice system isn't the blogosphere, but the net's combination of strong anonyminity and a free market in legal jurisdictions. The same technology that allows human rights activists to hide from the Iranian regime and circumvent the Great Firewall of China also allows people to read or post or host information which undermines our justice system. It could be used, for example, to set up a website whose sole function is to violate New Zealand suppression orders. If located in the right jurisdiction, such a site could never be taken down at source. It could never be effectively blocked - "the net interprets censorship as damage and routes around it" is an old saw, but its also true (in that such blocks are also fundamentally ineffective). And unless the authors were very, very stupid, they would never be caught.

But there's nothing the government can do about that. Nothing. The collective minds of the world's most powerful dictatorships can't stop it, so I doubt New Zealand could. More importantly, adding new laws does nothing to help. The problem is not that such behaviour wouldn't be illegal, its that we now have reliable technological means to not get caught.

But the blogosphere isn't in that space. Its already subject to existing laws. And those laws seem to generally be up to the task. We don't need new ones.