Wednesday, October 31, 2007

The name of the "royal"

The world’s newslets are quite busy reporting about the irrelevant news that a “royal” (vg member of the British royal family) has been subject to an attempt of blackmail, and while the news itself is stupid and irrelevant, it raises several questions about how appropriate is the current law to deal with issues related to Internet and the potential liability of international actors due to an English court decision.
As many would sadly know by now (sadly because it is difficult to imagine a more stupid way to fill the time busy people have to receive information), a “royal” seems to have been subject to an attempt of blackmail and an English court has decided to impose a ban on UK media to publish the name of the alleged royal victim (technically a gag order) . Then, the name of the alleged victim has been widely made known in US and other countries’ media, and that media is available in UK via the Internet. So, does it make any sense to keep the ban? Is it realistic to even impose it in the first place? To impose a ban on the release of the name of a victim of blackmail is usual practice to protect the privacy and reputation of that person (protection that seems to increase proportionally with the wealth and fame of the person), but is it also a known fact that, once information has been made public without violating the ban (vg in a foreign country) but enters the common knowledge in UK (by import of the foreign media before and now could be argued through Internet), the ban or gag order becomes irrelevant and it is normally lifted, as decided by the House of Lords in the Spycatcher case. So, taking into account that the name is widely available, if somebody like me, who knows the name, decides to write it in this blog, would that be contempt to court? On the other hand, where would it be published? Here in UK where I am writing it or in the US where Google’s servers are and where this blog is hosted? The issue of the place of publication is important because if it is understood that the place where I am writing it is the place of publication, then when a reporter sends an article from the field, wherever he or she is, the place of publication would be that place and sometimes they report from places where freedom of expression and other rights allowing them to report what they are reporting are not existent making their publication illegal…So, in order to protect British journalists it is expected that the law would understand as place of publication the place where the publisher not the reporter is located, which in this case would leave us with the issue of whether I am the publisher,UK based, or Blogspot/Google, US based (a more important news would deserve the technical analysis, but for this one, asking the question should suffice). But, what happens with the place where the effect is felt? While the test established by the Australian High Court for defamation in
Gutnick v. Dow Jones refers to the place where the effect is felt as the one where liability arises, it is doubtful that the same test could be applied to a Court imposed gag order and here we can cite and paraphrase the UK case Buchanan v Rucker (1808) [English Reports, vol 108 p 546] and ask "can [a UK court] pass a law to bind the rights of the whole world? Would the world submit to such assumed jurisdiction?”. If the answer is not, it is time for UK courts to realize that we are in a different planet and that their rulings need to take into account current technology and that if they don’t do it, they risk to make the law an ass

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