Europe Debates New Rules for Internet Publishers

It used to be that on the Internet you could publish anything you wanted, anytime. An Internet scribe like Matt Drudge could, without proof, accuse a presidential advisor of beating his wife or a programmer could create an online video game allowing users to play Michael Jackson and drop babies out the window of a Berlin hotel. It's the Internet people argued, anything goes.

But those days of wild west abandon could soon be numbered.

A proposal finalized by the Council of Europe this week would require that all Internet sites be required to post or at least link to a reply to their posting if a person demands it. Newspapers and magazines in most European countries have been required to publish replies -- often in the form of letters to the editor – since 1974. But with the increasing influence of the Internet, the proposal's drafters have noted, it is necessary to extend those rules to interactive media in order to protect an individual’s rights.

"Online activity, especially professional services with a highly suggestive nature over the Internet, is invariably and basically a supplementary medium in the range of elements and possibilities for how one can express one's free opinion via the media," said Norbert Flechsig, who is a member of the Group of Specialists on Online Services and Democracy drafting the policy and a legal expert for Germany’s public television and radio broadcasters.

"It is recognized that the individual should be protected against interference in his privacy or against attacks upon his honor, dignity or reputation in relation to media of a periodical nature, such as newspapers, radio and television."

Everyone's a professional

The draft policy requires that a Web site make publicly available a reply for at least 24 hours in a prominent place. It also permits hyperlinking to a reply posted on another site. It also requires that a link to the reply be kept in perpetuity for as long as contested information is posted online and that no restrictions should be placed on length, since there are no real space restrictions on the Internet.

The original draft of the proposal, introduced in January 2003, called for the rules to be applied only to "professional online media." But the drafts circulating since March and discussed at this week’s meeting of the Council of Europe, have dropped the word "professional" to make the law more encompassing.

Critics, including the journalist Declan McCullagh, a noted expert on the Internet and civil liberties, believe the rules -- if implemented by the Council’s 45 member states, could have a devastating impact on bloggers and other non-commercial Internet writers.

"A right of reply penalizes an Internet speaker or publisher," McCullagh recently wrote on the U.S. online service News.com. "In may cases, the cost may be minimal, but in marginal cases, it is likely to stifle robust political discussion – which lies at the heart of democracy."

The implications are potentially huge -- everyone running a personal Web log could be forced to post replies from disgruntled targets of their writings -- at least if their pages are hosted on servers in Europe.

A need for recourse

But with the increasing influence of the Internet, European policy-makers believe people need to be given more recourse in the event libel or slander is committed against them online. Pall Thorhallsson, a member of the media division of the committee, defended the policy in an interview with News.com.

"Some online publications run by non-professionals can be very influential and therefore damaging to the reputation of other people," he said. "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."

Most European countries, Germany included, have long had laws in place requiring the right of reply in the media. Responding to McCullagh’s criticism, Germany’s Der Spiegel newsweekly wrote:

"The idea that the right of reply in the online media leads to censorship is nonsense," journalist Frank Patalong wrote in the magazine. Patalong also found McCullagh's assertion that the right of reply could limit a "robust political discourse," and therefore damage the "heart of democracy," was a bit "panicky."

Patalong also wrote that it didn’t make a huge difference that the plan doesn’t differentiate between bloggers and large media companies.

"Anyone here in Germany who publishes on the Internet must be able to stand behind (what they write): Anyone who lies, deceives, commits libel, slanders, attacks, injures, insults or harasses – can also be held accountable." He went on to ask: "Why should someone who publishes in private, be allowed to report anything he likes about a third person without allowing them to contest it?"

Though the proposal has ruffled few feathers in Germany, it's passage is far from certain. Any actual decision on the proposal would be left up to the individual member states -- the Council of Europe has no legislative authority and can only issue legislative proposals to its members.

In the meantime, there's little someone like singer Michael Jackson can do to keep Internet users from having fun at his expense.