Freedom of Speech on the Barbados Blogs – Part 1: A journalist confesses to his sins…

Part 1 of our new series: Freedom of Speech on the Barbados Blogs

Jeff Cumberbatch of the Barbados Advocate confessed to posting comments (HORRORS!) on two anonymous blogs: Barbados Underground and Barbados Free Press.

(That’s ok, Jeff! We’ve had government ministers posting on BFP – so don’t worry about it. Your secret is safe with us.)

The confession takes place in the latest Barbados Advocate on page 9 of the dead tree version and online at Musings: Free anonymous expression.

Mr. Cumberbatch has some thoughts about defamation and anonymous blogging and even if you don’t agree with everything he says, his article is worthwhile reading to get you in the mood for our new series of articles here at Barbados Free Press titled “Freedom of Speech on the Barbados Blogs.”

Roosevelt O. King touches off an important societal discussion

All of this latest discussion about the limits of anonymous blogging by Mr. Cumberbatch and others takes place in the context of three articles posted on Barbados Free Press about the online revelations of Mr. Roosevelt O. King, the Secretary General of BANGO: the Barbados Association of Non-Governmental Organisations.

BANGO Secretary General Roosevelt O. King

Mr. King posted information on Barbados Underground Blog concerning child prostitutes smuggled into the Caribbean. Barbados Free Press posted three articles about Mr. Roosevelt’s writings, but one of the three BFP articles was removed by WordPress.com for reasons that will come to light during our new series.

Today in our first article, we’d like you to read Mr. Cumberbatch’s thoughts at the Barbados Advocate. In our next article in the series we’re going to look people who blog about Barbados under their own names.

Now here’s the deal, folks… We’re going to copy Mr. Cumberbatch’s entire article here only because the Barbados Advocate destroys their online archives every so often. SO…. we want you to promise that you’ll head over to Barbados Advocate to read the article while it’s still posted there. Got that? Great!

Alright… go to the Barbados Advocate to read Jeff’s article…

Musings: Free anonymous expression.

Only if it’s not there, then you can proceed to read it here at BFP. Ok? The Barbados Advocate deserves the web hits so go read it there if you can, please!

If it’s not there anymore, ok… here it is…

Musings: Free anonymous expression

9/20/2009

By Jeff Cumberbatch

I have a confession to make today. It is that I frequently read the popular local ‘blogs, Barbados Underground and Barbados Free Press, and on one or two occasions, I have even gone out on a figurative limb and contributed to them; pseudonymously, of course. And while that admission is clearly not up there with, say, one of having cheated on your taxes or of having indulged in shoplifting, the relative silence in the print and electronic media and among the chattering classes concerning these avenues of public discourse would lead to a view that it is still somewhat infra dig to contribute to them. Much like calling the talk shows, even though these are gradually gaining the imprimatur of serious debate in some respects.

Indeed, there is a degree of similarity between the ‘blogs and the talk shows; in the presence of frequent contributors, in the variety of topics for discussion and in that oh-so-valuable anonymity which permits free expression by a people still fearful of imagined official sanction for a contrarian view on even the most anodyne subject.

In this last regard, the ‘blogs are even more accommodating than the talk shows, for while a voice might be recognised or outed, there is scarcely any prospect of this occurring with the numerous, and sometimes multiple pseudonyms (including, of all things, “ Anonymous”), used by contributors. Only a few brave (or vain) souls have included their photo as an avatar to their names, thus removing any doubt as to the true identity of the contributor. And, as with the radio talk-shows and mid-morning traffic, I continue to marvel, in the midst of a relatively low unemployment rate, how so many individuals manage to find the time; in this case to contribute to so many threads (and on the blogs, so many times) of discussion daily.

As a leader in this newspaper editorialised some months ago, the freedom of expression on the blogs, though subject, theoretically, to the same constraints as other written or spoken exercises of this freedom, including respect for the reputations and privacy of other persons, nevertheless enjoys all the privileges which come with anonymous publication. An individual who considers that she has been defamed by an anonymous statement on a ‘blog and who contemplates legal redress therefor from that contributor, must clear, in addition to those of the traditional legal requirements, the further hurdle of identifying the contributor by discovery from the blogmaster or an Internet Service Provider.

Some recent cases in the US have treated this issue, with contrasting results and it seems clear that the issue is far from settled. In one case in the State of Maryland in February, the Court of Appeals held that the claimant, in order to succeed, must first establish facts sufficient to make out a “prima facie” or presumptive case as to each of the elements of defamation. Second, the court has to balance the blogger’s constitutional right to freedom of anonymous expression against the claimant’s right to protection of her reputation. This latter consideration would give primacy to public interest issues and less value to the scurrilous, although it is not always easy to distinguish these. A similar holding has been made in New Jersey.

And in a New York case decided last month, the Supreme Court of New York held that a model who had been the object of anonymous calumny on a ‘blog, was entitled to discover from Google, Inc., owners of the website which hosted the offending blog in question, the identity of the blogger who had written about her. In this case, the court was satisfied with the claimant establishing the arguably lower standard that “a cause of action exists”, whether likely to be successful or not.

Although the law in the various states of the US differs somewhat from the local law on defamation, it is important that we consider these matters. As anyone familiar with the popular local blogs is aware, there are no holds barred when it comes to prurient discussion of personalities which, unfortunately, is oftimes substituted for informed discussion on the topic at issue. It may not be long before some individual determines that a defamation action is in order for some anonymous disparaging remark.

First, it is no defence that a different and lower standard of what constitutes defamation exists on the blogs. In the New York case referred to above, the Court firmly rejected the proposition of the blogger that statements made in this medium cannot reasonably be considered as factual assertions since “Internet ‘blogs serve as a modern day forum for conveying personal opinions, including invective and ranting…”. As the learned judge saw it, “[i]n that the Internet provides a virtually unlimited, inexpensive and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored…” In her view, ‘those who suffer damages (sc. damage) as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights…”

I’ll continue this discussion with an examination of the responsibility of blog hosts for defamatory material, the elements of defamation, and other issues; including the view that freedom of expression may be a cultural, even more than a legal, phenomenon.