If the early Kodak camera and the new tabloids were regarded as threats to privacy in the late 19th century, I dread to think what Samuel Warren and Louis Brandeis would make of today’s webcam age.

In their celebrated 1890 article ‘The Right to Privacy’, perhaps the most famous article on privacy ever written, the authors lament the undermining of propriety and decency by a media culture “where gossip is no longer the resource of the idle and the vicious”.

One hundred and thirty years later, we are living in a tangled world-wide web that records every little thing, forgets nothing and shares that information over and over – from embarrassing Twitter posts to ill-advised photographs, from inane Facebook statuses to entire blogs.

With 500 million-plus Facebook users, 10 million registered on Twitter, and ordinary internet users shooting the virtual breeze, the web facilitates unprecedented scrutiny and voyeurism. All this electronic chatter goes into a very permanent – and very public – digital file.

When the stuff that comes back to haunt us was our own doing, committed through our own reckless, drunken and grievous fault, that’s bad enough. But when it’s stuff other people have written about us, over which we had no control, and when, on top of that, it’s untrue, defamatory and consequently damaging, that’s plain awful. And quite frankly, unacceptable.

You’d think that the bottom line of any defamation law would be to erase the libellous and damaging information forever, sooner rather than later. Traditional print media doesn’t present too much of a problem because today’s newsprint is tomorrow’s fish-wrap and tends to get forgotten. Newspaper cuttings are not filed away in your average home.

But when it comes to the permanent memory bank that is digital media, there can be no forgetting. And because online information is not only far-reaching but also everlasting (at the click of a button), there’s definitely a strong case for the permanent (and immediate) erasure of that information.

Which is why, when it comes to discussing the new Media and Defamation Act (MADA), we should not be getting lost in registration, which is rather a red herring. If I were Minister of Justice, I’d drop the registration issue altogether. It’s a hornet’s nest and the short road to chaos. But precisely the sort of thing the Opposition was guaranteed to latch onto: a heaven-sent opportunity to lament the end of freedom and scare us all with a return to the Iron-Curtain conditions of the 1980s.

The ripple effects of defamatory posts will always outlive their online lifespan. Why allow that lifespan to run to the bitter end of a case?

Who cares whether or not a website is registered if that information can be readily accessed elsewhere? Registration then becomes pointless.

As ICT media law expert Antonio Ghio has pointed out, it is well within the power of the courts to request an Internet Service Provider to reveal the identity of any user through the IP address. This is precisely what the new press law needs to reflect. It also needs to focus on ‘Take-Down-Procedures’, something to which Ghio made only passing reference.

Although these procedures are contemplated under the e-Commerce Act (Chapter 426, Laws of Malta), there is still no official structure in place to support their implementation. Articles 19 to 21, however, do envisage the possibility of removing illegal content from the internet.

At the risk of venturing out of my depth, it appears that once a provider is made aware of any illegal online content, he must act expeditiously to disable or remove it altogether, or face a hefty penalty. This procedure appears to be modelled on the US Digital Millennium Copyright Act, which, pursuant to a complaint, requires a website to remove any content infringing intellectual property rights.

I can’t rule out, a priori, the existence of other local laws governing content removal, but it would appear that the still unexplored (and unexploited) e-Commerce Act, which has been around since 2001, is a ‘first’ in notice and take-down procedures, and hasn’t been embraced so far by any government or the Malta Communications Authority.

That’s what we should be doing now, not chasing our tails over registration and garnishee orders. Such orders don’t intervene decisively with defamatory or illegal content. But other injunctions can. So let’s establish, once and for all, some efficient take-down measures to empower a court or tribunal, presented with a prima facie case, to order the immediate removal of defamatory content.

Admittedly, s.14 of MADA allows the court to order the removal of the defamatory statement once a final decision is given in favour of the claimant. But why should this be discretionary? Why not mandatory? And why so late in the day?

The ripple effects of defamatory posts will always outlive their online lifespan. Why allow that lifespan to run to the bitter end of a case? Why enact a law on online defamation which, not permitting timely erasure, awaits only the outcome of a case?

What good is €20,000 when you have to endure (1) a protracted court battle, including appeal, and (2) a slur on your reputation with the attendant prospect of unemployment and social rejection? The e-Commerce Act certainly recognises the damage that illegal online content can inflict. Which is why non-compliance is met with a maximum penalty of €250,000 and a daily fine of €2,500 for each day that the offence continues.

How does this square with the maximum damages of just €20,000, itself a sum that can only be obtained after a protracted battle in the public arena of the courts? Or a derisory €1,000 if the perpetrator issues an apology?

■ And how much will it cost you to clean the internet of all the illegal content that has been disseminated, assuming that is actually possible? Isn’t self-preservation and the right to protect yourself and your family from malicious gossip and fake news, the most basic and fundamental human right?

michelaspiteri@gmail.com

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