Lowest common legal denominator

The New York Times tried to block UK readers from its detailed story about evidence in the London airplane bomb plot so as not to run afoul of British laws restricting such pretrial coverage. But The Guardian reports that it wasn’t — it couldn’t be — 100 percent effective for both technical and human reasons (i.e., bloggers copying the story for all to see). In this case, I assume, The Times’ motive was to not interfere with the prosecution of the case — not to get the terrorists off. But with the UK’s stricter libel laws, one could also imagine publications trying to play safe and restricting access to stories so as not to get sued. That, too, won’t work reliably. So all this raises a disturbing prospect: Will we find ourselves in a position where we need to publish to the lowest common legal denominator? Could China’s rules become our rules? And what will it take to protect us from that?

  • <sarcasm>As Dick The Butcher said, “The first thing we do is kill all the lawyers.”</sarcasm> Sarcasm noted, because, well, I don’t want to get sued (or worse).

  • Angelos

    In Bush’s vision of America, China would seem liberal.

    It’s all doubleplusgood here!

  • As I noted in a comment I posted about this over on Web 2.0 Newspapers, this is an example of a news organisation voluntarily taking steps to block access.

    More sinister are instances like the recent Falconio murder trial in Australia where the courts took the extraordinary step of warning news and media organisations OUTSIDE their jurisdiction against publishing material about the case online. A similar sort of thing has been happening with libel online, something I recently wrote a discussion paper about, where alledgedly defamatory content published in one country is sometimes scrutinised by foreign courts.

    This sort of thing is only going to increase in frequency unless there is some sort of international agreement that helps lay down the rules of judicial jurisdiction online.

  • Courts have held that Yahoo! (US version) wasn’t subject to the French ban on selling Nazi memorabilia, so that’s one US precedent in favor of US law prevailing over more restrictive non-US law.

    Also relevent is Captain’s Quarters publishing of information related to the Canadian Gomery Commission, banned there for essentially the same reason as in the UK terror case above. I don’t believe the Canadian govt took any action against Captain’s Quarters, presumably because they were aware they’d get nowhere in US courts. (Don’t know if the blogger can safely set foot in Canada though.) I’d guess that there will be a test case sooner or later.

    I’m pretty confident that US courts will have none of this. They will not have the US Constitution overridden by foreign law, at least where US citizens and US servers are concerned. McCain-Feingold is a bigger danger in my opinion.

  • Pingback: Web 2.0 Newspapers » British Legalities Delay Online Info Publishing on (Alleged) Terror Plot()

  • Good points all around.

    Just fyi, there’s more to my updated post than what the trackback above shows. For instance, speaking to Jeff Jarvis’ Q: “I don’t know what it will take to protect us, but again, I like the idea that the blogosphere is keeping the MSM in check when it comes to restricting access to information the Web allows us to share.”

    On the Gomery info-leak-via-US-blogger, here’s one of the posts for reference. Not sure if Ottawa will ban him from crossing the border. I’ll look into that when I can.

    As for a test case, well, this isn’t quite what you mean, I don’t think, but it’s a milestone in terms of the CRTC blocking access to a US site — though in this case it’s a move I have no problems with: Yes, I think blocking hateful content calling for the eradication of Canadian Jews (disclosure: me included) is different than blocking information — Gomery’s publication ban on key witness info/evidence– based on inquiries into our federal sponsorship scandal. CBC backgrounder on Gomery et al. here.

  • Terry Steichen

    What’s REALLY troubling here is that the NYTimes actually made an effort to block access. That suggests either a belief that the legal case isn’t so clear (and I would assume the NYTimes has plenty of access to high-paid legal help), or that the NYTimes is sufficiently gutless that it fears angering another country.

    Either outcome is a serious problem.

  • I. F. Stoner

    This is nothing new. Many US publications — even brick-and-mortar — have had seperate editions for these very same reasons. Newsweek, among others often does not publish stories about terrorism funding in editions sent to Arab countries, and some of those stories never appear online at all.