Sunday, October 09, 2005

*Reading the ST can be very painful*

Just a quick survey of the two page spread on blogs and blogging by our main English daily. The most common thought that ran through my head as I read some of the pieces is, okay but so what? Telling me what the law IS does not say anything about what the law OUGHT to be. I'm a Positivist in that I think the law is whatever the state says it is. But inherent in that belief is that as a result, the law does not have a necessary connection with morality. Just because it's the law doesn't automatically make it good or bad.

Regular contributor Ephraim Loy argues that blogs are not personal spaces and therefore should be subjected to general laws on publications. This is merely begging the question whether just because something happens to be published means that the laws of libel should automatically apply. Refer to the paragraph above for personal response. Our laws are some of the most pro-plaintiff in the world, sure that's great if you have access to a lawyer to protect your reputation, but what about it's unwonted effects?

Lest we forget, Article 14 of our Constitution grants us the Freedom of Speech (subject to qualifiers) and the laws of libel must be seen in a historical context of print and the small select group of people who could read and the real danger to reputation it could cause. More than that though, the right to free speech as it emerged later, in turn qualifies these laws to a massive extent (in most liberal democracies) for good reason, the freedom to think as we will and the belief in the individual is nothing if one is not allow to express what he feels and thinks. Bad speech is still better than no speech and one viewpoint.

The basis should be that all speech goes unless you fall afoul of stated qualifications like the Sedition Act. It should not have to be a case where one is given permission to speak on a particular topic but rather one where the principle of the boundaries have been clearly demarcated. Unfortunately, that brings us back to the age old debate about where the OB markers should lie and whether they should be expressly stated. Which is why I have always opposed restrictions on speech that is inherent fuzzy and subject to societal norms. Saying that only if the speech is offensive to society and that it should thus be banned simply gives carte blanc to societally accepted discrimination e.g. against homosexuals.

Just one thing though, because there isn't a right of privacy in Singapore, you can't stop someone from taking a photo of you and publishing it online actually, compromising position or not. There are some specific provisions where there is an evident lack of consent like with hidden cameras and upskirt pictures. But beyond that, I honestly doubt it is illegal (or even creates civil liabilities) if you happen to take a picture of a stranger who might be in a 'compromising position' in a public space. Oh wait...maybe that's what he meant?

And on the issue of copyrights, he misses out the entire aspect of fair use, parody and proper attribution and oh, Creative Common Licenses. Sorry but the laws of intellectual property rights are too convulated to try to squeeze into a one liner e.g. you can sample music for example, but for only 6 seconds. And some music are already in the public domain so go ahead and use it.

And really now, why should the site owner be held responsible for the comments of other posters? Now I'm going to grant the fact that this article was not meant to be an opinion piece but something that's suppose to help the poor blogger avoid the pitfalls of the law but the advice is not very helpful. Here's some useful advice. How about, a blogger should exercise close editorial supervision over comments. Or "if you want to be certain not to attract liability, switch off the comment function."

Anyway in my personal opinion it's not akin to a publisher who unwittingly publishes defamatory comments. In fact, it seems to me to be more akin to a newsgroup or a chatroom where the host does not bear legal liabilities for commentor's post. If the ISP can escape liability, why not the blog owner unless he in some form or manner solicited that comment and implicitly publishes that comment by say not responding to it? More to the point though, what's the case law on that?

Gods, why didn't the ST ask a law student to write the column instead?



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