At the outset I just want to point out that this post is written in my personal capacity. I am also involved now in my professional capacity and I won’t really comment on that side of the matter.
I received a message from Guy McLaren from the contact form on this blog yesterday. Here it is (I have masked his email address and IP address to prevent spam or other attacks):
[Apologies, the extract was lost in the sands of time and data migrations]
I have posted a couple times about Guy McLaren in the last few days and you can see my posts right here. I have been debating how to respond to McLaren’s message (which, by the way has been sent to other bloggers too) and while I initially felt outraged about the notice, the more I thought about it the more this is about McLaren’s efforts to censor me and blatantly infringe on my Constitutionally protected rights including the freedom of expression and the freedom of religion, belief and opinion. Here is what these two rights provide for:
These are rights we all enjoy and McLaren’s notice is an offence to those rights. What his notice amounts to is censorship and this is not permitted. In the recent case between the Health Minister and the Sunday Times, the court had the following to say about the right to freedom of expression:
The enquiry in a matter such as the present envisages recognition of the constitutional importance of the rights to freedom of expression and to receive and impart information and ideas, entrenched in Section 16 of the Constitution. The SCA has recently dealt with a matter where these two competing constitutional rights come into conflict, ie. the right to freedom of expression and the right to dignity. The SCA stated that where two competing constitutional rights come into conflict each invoked by different parties, and seeking to intrude on the other right a court must reconcile them. All constitutional rights have equal value and therefore this reconciliation is achieved by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other according to what is required by the particular circumstances and within the constraints that are imposed by Section 36 of the Constitution. In other words, one weighs the extent of the limitation against the purpose, importance and effect of the intrusion and this entails weighing the benefit that flows from allowing the intrusion against the loss that that intrusion will entail. The SCA thereafter held that when a ban on publication is sought there must be a demonstrable relationship between publication and the prejudice it is alleged will be caused. In summary a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. The SCA held that the reason for this was that it is not merely the interests of those associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.
The court would not accept the Minister’s efforts to censor the Sunday Times’, even as it expressed its displeasure with the paper’s methods of obtaining information about the Minister’s stays at her clinic. This case is the latest in a line of cases that explore the parameters of the right to freedom of expression and the principles are fairly well established. In the case of my posts about McLaren, I intentionally steered clear of any personal attacks on McLaren because I just don’t know the guy (excuse the pun) and I don’t really think that is the way to go. I initially heard about the controversy over McLaren the other day at a braai and took a look the following day. Although what I saw put me off, I decided to post some of my thoughts about the controversy. These are my opening paragraphs to my initial post:
Ok, I know I said I wouldn’t comment on this saga publicly at the risk of being sued but sometimes I have to just get my thoughts out there. I read the posts on Muti about McLaren’s offering to his clients including Nic’s post and the initial post on The Colony. I also watched two of his videos on YouTube (I couldn’t bring myself to watch more). On the one hand I think his work should be exposed because I have serious concerns about what he is saying and what his clients are buying from him. On the other hand, when I read what people are syaing about him and his work and how seriously it is all being taken, my only comment is “you have got to be kidding!”.
If what he says is true and he has a thriving business based on his offering to his clients, then those people who buy his product and his thoughts about the Web and things like Flash and who benefit in the process should just keep doing what they are doing. It is obviously working for them. The rest of us see value in all the stuff he condemns and wouldn’t touch his content builder with a virtual barge pole (well, except the so called “script kiddie” who walked in through McLaren’s open back door (aka his admin area on his site) and did some damage to the site). We may all be hopelessly misguided in our slavish use of Flash and “wow factor” design elements but that stuff tends to work on the Web today. Besides, I like that sort of thing.
So, for the most part, my intention was to first highlight the controversy and speak to some of the aspects of it that concern me. I was, and remain concerned, about some of the things McLaren has been saying about site design and about how to market businesses online, particularly through his network of sites. Nevertheless, I don’t go as far as saying he is a fraud, or anything like that. Ultimately I take the line that if his methods work for his clients then good for them. They don’t appeal to me at all and a number of developers who made it this far don’t agree with him either so it is important to publish another perspective. This is especially important because McLaren puts himself out there as an expert in effective web site development and an expert on contemporary web development trends. Saying you are an expert in something means you are going to have to defend your expertise from time to time. People who don’t know much about web development tend to believe experts in the field and if that expert’s methods and techniques are controversial there is bound to be some debate about them. Of course the fact that McLaren is so public with his views (in addition to his many blogs, he also posts videos to YouTube). This last week saw that happen, first with the flurry of activity on Muti and then on some of the individual blogs.
I closed off my second post with this comment which I still believe is fair comment:
Guy, if you feel strongly about your methods and techniques then at least be confident enough in them to allow them to speak for themselves. You obviously have a number of customers who you have helped and good for them and for you. There are, however, a large number of people who think you are up a creek without a paddle and they won’t be going to you for advice. That is their choice too. It really shouldn’t cause you to doubt yourself enough to resort to these sorts of attacks. Apparently they do though.
So, how does McLaren respond to all of this? Well, although there is a link to his blog in one of his comments on this blog, you won’t find those comments on his site because he removed them a few hours after he posted them. It is a good thing Google has such a good memory because I managed to find these items about me, Charl van Niekerk and Nic Haralambous. McLaren has complained that my posts are “inflammatory and slanderous”. I don’t think McLaren is approaching this matter with clean hands and although I was going to ignore his comments about me and even have a laugh (my wife still things the alley cat/slug/dead chicken comment is hilarious), I may reconsider if McLaren decides to take further action. I think it is safe to say I have a bigger presence on the Web than he does. I won’t comment on Charl’s or Nic’s positions because I haven’t spoken to Charl and because I have been asked to represent Nic in my professional capacity.
There is another thing I want to show you although I won’t comment on it much more. Take a look at the url in my browser window and the text on the page. All of those links point to another one of McLaren’s blogs.
You can see a higher resolution version if you click on the image.
The site has been taken down and this message was in its place:
I noticed that Mr Haralambous faileed to register his .co.za domain, so in the interests of saving him the trouble of some unscrupolous sod hijacking it I registered it. Nic just let me know where you want it transferred to.
So what we have here is a person who doesn’t hesitate to defame people who criticise him and who then similarly doesn’t hesitate to demand that any critical comments are removed immediately. As you may gather, I take serious issue with this because it is little more than censorship. I have a right to express myself and while there are limits to that right, I am far from those limits. The press has made much of the damage bloggers can do when they defame people online, in part because that sort of drama sells papers. In this case, the damage that could be done if McLaren is allowed to silence me and other people who have passed fair comment about his business will far outweigh the impact of that comment. I would go so far as to say that there are solid pubic policy reasons for resisting this sort of tyranny. This is one of the reasons why blogs are so important and why they are such valuable tools for the freedom of expression. Sure some bloggers abuse their blogs but there are many more bloggers out there who are the only thing between the light and the darkness (if you will excuse the drama). Bloggers have exposed many hidden wrongs and rather than censoring them, they should be protected and encouraged to keep going. I accept that if I overstep the bounds of the exercise of my rights that I should be made to take that content down. Again, this is not one of those times … cue flag flapping in the breeze and deeply patriotic music …
I published my posts because there are issues here which I believe people should know about. I have participated in a conversation about controversial methods and that conversation ought to be protected (and I believe it is protected) by our Bill of Rights. Now after my last post I was pretty much done with this topic and then I received McLaren’s demand. I think it is fair to say that the other bloggers who wrote about it were pretty much ready to move on to other things. McLaren obviously feels this matter has not been fully ventilated so I am happy to continue the conversation. In fact, I think this could be a good time for those of us bloggers who do pass fair comment about important issues like this to debate how we, as a community, ought to respond to these sorts of demands.
McLaren has threatened me with a take down notice in terms of section 77 of the Electronic Communications and Transactions Act. That section provides for a special notice where content has been published and is unlawful. This includes content that violates copyright and other rights. I suspect McLaren’s argument is that I have defamed him and therefore my posts must be taken down. The take down notice is supposed to set out the details of the alleged offence so I would like to see that notice. Guy, please feel free to copy me on the take down notice. I’ll get right back to you.
For the time being, these posts are staying up on this blog and this blog aint going nowhere. I will not be censored.
Image credit: Pixabay
Postscript (2016-12-05): I have updated this post a little by inserting a text-based quote from the Minister of Health court case to replace the lost screenshot of the text and added the featured image. This was more of a maintenance update to fix broken thumbnails and mitigate data loss.