Italian Bloggers On Strike!

Did you know that Italian bloggers are on strike?  It's true!  Since July 14, Italy's bloggers have been under self-imposed silence, in protest of a proposed law (called the Alfano decree) that would grant a right of reply to those who feel their reputations have been besmirched by something posted on the Web, writes the BBC.  For those who can read Italian, the strike's website is located here.

I have mixed feelings about this.

On the one hand, I'm very sympathetic to the bloggers, who are right to be concerned, because this is pretty much the mother of all chilling effects.  If I wanted to make up a hypothetical to illustrate the damage such a law could cause, I couldn't make one better than this.  As Alessandro Gilioli, the journalist who organized the strike, told the BBC:

"[The legislators behind the Alfano decree] are discouraging the use of the internet, forcing all the bloggers to rectify any opinion that anybody thinks is hurting his honour or reputation and they are creating big fines, more than €10,000 (£8,500), if you don't publish your rectification in two days.

"So that means that if a teenager stays two days away from the computer and he doesn't rectify his opinion, he is going to pay €10,000.

"That's stupid and that's incredible and overall that's discouraging people to use the internet."

He's absolutely right, of course.  It is stupid, and it is going to discourage people from blogging.  The Italian government couldn't come up with a better means for indirectly barring criticism on the Internet.  And naturally, it won't just be public officials and figures who'll be able to take advantage of such a law.  I'd be more worried about the kids writing about their school day, or people who blog for their friends.  Woe betide little Bambalina should she say mean things about her math teacher, or Jon-Stewart-wannabe Giovanni should he make a snarky comment about an acquaintance that gets taken the wrong way.  They'd better have several thousand Euros socked away somewhere.

But is a strike really the way to go?  Because it seems to me that the bloggers, as a group, are missing the most important element of a strike: economic influence.  Bloggers aren't exactly autoworkers.  Industries don't depend on bloggers showing up to work each day in order to avoid crippling economic losses.  Heck, as the BBC article points out, Italians barely use the Internet: "More than half the population has no web access and one source puts average usage at just two hours a week."  That being the case, a bloggers' strike is unlikely even to be noticeable to the Italian public.  Really, the Italian bloggers' strike reminds me of nothing so much as the South Park episode where Canada goes on strike, to "show the world how bad things would be without it."

So what should the Italian bloggers do?  I'd imagine the only way they'll be able to stop this legislation is to face it down in the courts of Europe.  But even then, it's hard to see how this might come out.  On the one hand, the proposed law seems to run afoul of Article 10 of the European Convention of Human Rights, which protects the "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."  While EU member states have some latitude to abridge that freedom, such abridgements must be "necessary in a democratic society."  It's hard to see this right of reply being so necessary.  (Not to be Americocentric, but the U.S. Supreme Court has definitively rejected right of reply laws as inconsistent with freedom of the press, see Miami Herald v. Tornillo, 418 U.S. 241 (1974).)

On the other hand, Europe has generally been supportive of right of reply laws, particularly on the continent.  Of course, most right of reply laws are meant to mitigate the power of the press over an individual who lacks the means to publicly respond to media stories.  That isn't the case here, because bloggers tend to be just as powerful (or powerless) as those they might discuss.  The European courts might reason (quite rightly, I might add) that the party seeking a right of reply against a blogger is perfectly capable of writing their own blog in response or posting a comment or tweeting or what have you, and therefore no right of reply is necessary.  But the European courts might also feel that Italy's right of reply falls within its margin of appreciation and allow Italy the latitude to determine for itself whether the right of reply wins out over a blogger's right to free expression.

I'd guess (and hope) that the importance of Article 10 would win out over the right of reply.  But it's hard to predict how Europe's courts would make the balance.  Nonetheless, as noble as the bloggers' cause is, this is an issue that should be decided in the courts.  The bloggers' strike just isn't going to cut it.

(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)

Photos courtesy of Flickr user BEE FREE PGrandicelli [the social bee], licensed under CC Attribution-Noncommercial-Share Alike 2.0 Generic.


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