Wednesday, July 27, 2005


'What If'? Wednesday - Bloggers libellous?

What if a blogger was sued for libellous comments? No, I'm not trying to scare you but it is indeed a possibility apparently!

There's been some talk lately about what blogs can and can't get up to with regards to its power of expression and about the possibility of some comments being made on blogs which are libellous.
Slugger O'Toole has found itself in a spot of bother over this of late and Colm Bracken has made a great post on the matter but I still remain a bit confused about the whole thing. I have been reading through the Irish constitution and it's not exactly crystal clear in relation to this matter.

Freedom of speech is guaranteed in the Irish constitution under Article 40.6.1. The full article reads as follows:

1. The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

I have a few questions on this:

- A reference is made to the "education of public opinion", could a defense be made on the grounds that you were not trying to educate public opinion with your comments? That they were designed to be humourous or mocking rather than "indecent"?

- Blogs are obviously not listed in the constitution being a new phenomenon, could blogs not therefore be allowed to get away with "blasphemous, seditious or indecent matter" on the grounds that it's not an organ of public opinion? How does one determine what an organ of public opinion is? Could it be argued it's not an organ of public opinion? Limited audience for example...

- Shouldn't the fact that the constitution guarantees "The right of the citizens to express freely their convictions and opinions" take precedence over everything else?

- Why should the owner of a blog accept responsibility for comments others make? I note this has been an issue over at Slugger O'Toole. Surely the onus is on the person who pushes 'publish' in the comments box, no?

- On another note, is there not some loophole in American law which states that people can't be sued over something which is a parody of something or am I completely wrong about this?

If someone knows the answers to these questions I'd be interested in hearing them. The whole thing seems very confusing to me. Who knows, we might end up seeing a blogger in the Supreme Court asking them to interpret this puzzler of an Article!


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