Nov 192012
 
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Michael Crick, Channel 4 journalist, reports the following tonight (on Twitter of all places – so it must be true!):

Ld McAlpine C4News: “I’m determined to make such an impact on the Twittering fraternity that they start thinking about what they’re saying”

Meanwhile, Business Insider provides some background to the above statement, as it tells us the aforementioned gentleman is planning to sue at least ten thousand Twitter users.

Now I’m pretty sure that he is utterly within his rights to do so.  I’m even half-convinced that I might attempt to do the same if someone wrongly accused me of being a paedophile, and – in the absence of Legal Aid services as a result of this government’s unnecessary cutbacks – I had the independent financial wherewithal to proceed with such a complex legal process.

But I bet my bottom dollar (of which I have very few) that none of the thousands of Twitter users in question who end up having to pay compensation will have tweeted from – or be resident in – the United States of America.  This, of course, is relevant in some small way.  As I posted in a previous article:

Given that the above-mentioned corporations are all nominally American in approach, mentality and ways of thinking, if nothing else this all goes to show us how difficult and challenging it can be to transplant at a global and online level behaviours which other legal jurisdictions take for granted.

“So what?” you might say.  So are Starbucks, Asda, Amazon and a whole host of other corporations which supply the English with a wide range of goods and services these days.  They adapt to our culture; they tweak their delivery; they use our own language out of a need to get evermore closer to what, for them, is that sometimes terribly elusive foreign customer.

If they can – and do – manage to achieve the above, why not Twitter, Facebook, Google & Co too?

Well.  That’s a very good question.  And here’s a kind of an answer.  The American SPEECH Act from 2010, signed by President Obama with I believe the unanimous agreement of both House of Representatives and Senate, provides the following guarantees:

The Securing the Protection of our Enduring and Established Constitutional Heritage Act, known as the SPEECH Act, makes libel judgments against US writers in foreign territories unenforceable if they are perceived to counter the First Amendment right to free speech.

What’s more, whilst we’re on the subject, and as a gently relevant reminder of where we find ourselves here in England:

The British-based Libel Reform Campaign has expressed concern that Britain’s reputation is being damaged internationally due to what it calls “our restrictive, archaic and costly libel laws, which cost 140 times the European equivalent.”

According to Wikipedia, at least at the moment, SPEECH was enacted in part as a result of what’s called libel tourism:

Libel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those accused of making derogatory statements.[1]

A critic of English defamation law, journalist Geoffrey Wheatcroft, attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment and “the caprice of juries and the malice of judges.”[2] Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan case. “Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly.”[2]

The difference, then, between Starbucks, Asda and Amazon on the one hand and Twitter, Facebook and Google et al on the other?  Whilst the former have to use English ways of offering their goods and services, properly and heavily grounded in competition with local suppliers and legislation, the software that the latter use to construct their virtual environments has been built around the ideas that led up to the enactment of SPEECH: free speech and fair comment above all – and truth as the yardstick for publishing or not.  The very antithesis, in fact, of an English court’s way of understanding its legal business, scope and approach.

How so?  After all, a virtual environment must be the very easiest to tweak according to local legal jurisdictions.  That they haven’t obviously does beg the question why they’ve chosen to leave them as per US criteria.  And only they can say why this has become the case.  That their business models may depend on scandal and breaking news – perfectly legal in the US itself – does obviously occur to me as one factor which may have influenced such decisions.  But further observations on my part as to why they haven’t made it more difficult for their English users to commit libel and defamation would be no more than idle conjecture.  I don’t have access to anyone on the inside of such decision-making processes, and doubt anyone who does would ever say anything in public.

To summarise and conclude today: Lord McAlpine may manage to clean up that bit of Twitter which operates out of Britain – though I would respectfully suggest that the history of the web would indicate that the crowd generally wins out over a single intelligence – but even if he does, and even if his legal team is as well informed as they would have us believe is the case, I am also sure neither party truly thinks they will ever be able to get even close to any Twitter user operating out of the US.

And if this is the case, it will clearly be an example of a very English matter of libel.

Which leads me, tangentially, to wonder what use our democratically-elected officials will choose to make of the kind of precedent Lord McAlpine is looking to set.

Just as I wonder how they will use it in the future to muzzle legitimate debate and publicly-driven oversight of encroaching – and highly painful – government decisions.

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Nov 192012
 
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I finished a recent post on the subject of social media with the following realisation:

Given that the above-mentioned corporations are all nominally American in approach, mentality and ways of thinking, if nothing else this all goes to show us how difficult and challenging it can be to transplant at a global and online level behaviours which other legal jurisdictions take for granted.

I always thought when we spoke of oppressing freedom of speech that we were talking about developing countries in the Third World.

I now realise that there is a reason people call the United States the “Land of the Free”.  In many freedoms, they do clearly fall down on what their people deserve.  But in speaking their minds, they clearly do not.

We here in England have a lot to learn.

Too much for us to properly learn it in my lifetime, I fear.

Now in that piece I chart my sudden awareness that the figure of free speech in my homeland is highly limited by English law on defamation, where the onus in any case is on the defendant not the plaintiff to prove the truth or otherwise of any statement.  The most recent example whereby free speech is clearly not contemplated in such an environment is obviously in relation to the Lord McAlpine case, where it would appear his lawyers are operating entirely within legal structures many of us simply did not realise existed.  An overview of one aspect of what is being pursued here can be found at this interesting post, which examines the technicalities of – in this case – Twitter retweets: the forwarding on, and implied (or otherwise) intentionality behind such a forwarding, of other people’s remarks to your followers.  It would appear that Lord McAlpine’s legal team are looking to argue that retweeting implies acceptance of and agreement with the content so communicated.  The frame which is presumably being used is that of newspaper publishing – with all that such a frame implies from a legal point of view – but I am inclined to believe this is wrong for several reasons:

  1. Twitter is in many cases the online version of that gossipy office or neighbourhood grapevine – only globalised somewhat.  That the offline world generally tolerates without recourse to due legal process such gossip should make us think twice about making the virtual equivalent tougher than its progenitor.
  2. Twitter is – more and more – also a vast debating chamber of hugely beneficial democratic input.  That ministers and governments various across the world are finding it resistible should make us think twice about limiting its freedoms.
  3. Twitter does not earn, for its users and generators of content, very much – if any – tangible income.  Yes, it’s great for networking, which – arguably – leads onto tangential money-making opportunities.  But unlike the newspaper model so many online lawyers will at the moment be eager to allude to, the vast majority of tweeters who might amateurly fall foul of English defamation legislation will not be making a living out of doing so – nor will they earn anything directly from their continued stream of tweets.

But more important to a wider constituency than the McAlpine case mentioned above is surely the fact that these recent events – as well as those to come – show us that speech in England is anything but free.  And I wonder, as a result, whether we shouldn’t ask the following question: is it time to get serious about free speech here in England?

Will future libel and defamation cases on Twitter, Facebook and other social media need a two-pronged defence of erstwhile and clearly ignored freedoms here in England?

Firstly, that the onus and burden of proof about the incorrectness of a statement should fall on the plaintiff and not remain the responsibility of the defendant.  That is to say, we should be innocent until proven guilty – not guilty until proven innocent.

Here we need, then, to change the law.

Secondly, that those companies which have turned the erstwhile client (that’s you and me, I mean!) into product – product which generates income for the former on the back of the latter’s freely created tweets and input, produced in those environments such companies deliberately enable – should also face a certain kind of music when it comes to legal action, given that their business models rely on interesting and even scandalous information being continually generated by their product.

Without such software, nothing – of course – could be republished.  Without such algorithms or ways of connecting people, directly engineered by such corporations, nothing would become visible.

Here we need, then, to change the focus of our legal action.

And with a degree of substantial urgency, I think.

*

Alternatively, of course, we could simply decide to follow the US tradition of almost incontinently free speech.  The downsides are clearly manifest, of course, but in the light of recent revelations in England, and our creeping understanding of how many rights we don’t actually have, I think I’d rather follow the Americans down their route of incontinence than continue with this very English constipation of public discourse.

What say you?  A wholesale re-examination of what free speech should mean – rather than what it has, wearily, come to mean?

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Nov 192012
 
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My most recent post describes how we might blame, in part, social media corporations for deliberately fashioning environments which encourage libellous and defamatory conversations to take place:

In the light of encroaching libel actions various, and as a final thought tonight – that is to say, in a Columbo-esque parting shot kind of way! – maybe we should begin to conceptualise the idea of a huge class action against those social media corporations I’ve mentioned: corporations which sold us their social media tools as ephemeral expressions of our least careful thoughts – and yet did so with the ever-present intention to use them quite permanently.  That people can now arguably be accused of libel and defamation is in part – just as arguably – due to these two-faced software environments.  After all, if you deliberately encourage and make it attractive for people to republish or “like” the wildest assertions at the click of button, you are – are you not? – in some way to blame for the consequent behaviours.

Meanwhile, and not totally unrelated, our recent liberal-interventionist history has us invading sovereign nation-states precisely because – in our considered opinion – the sociopolitical and socioeconomic environments they generate fiercely prejudice their citizens, subjects and oppressed various.

We only have to look to the Balkans, Afghanistan and Iraq to understand how the figure of that inviolable space that once was a nation-state has taken on a completely different air of late.  In fact, the latest example actually involved the British authorities being caught out planning to intervene in the Assange case, holed up as he was – and is – at the Ecuadorian embassy in London.

So.

Nation-states are not the fully walled gardens they used to be.  As Facebook breaks down the permeability of the Internet, so international action and thought break up the impermeability of foreign countries.

A simple example: even as a British citizen, born and bred, you are not out of the reach of American copyright instincts.

The responsibility for creating an environment, with deliberation and intentionality, does not only apply however to virtual communities.  I know little about Gaza and the Israeli conflict, but I cannot help think that a certain contamination of environmental sensibilities is operating to the detriment of both parties.

I believe the Israelis argue that it is wrong to equate a nation-state with a terrorist organisation.  On the other hand, in other areas of the world, as already pointed out above, non-state institutions are sometimes supported over state-structured alternatives.  The principle of sovereignty, again as already pointed out, is not enough in itself.

What is true is that Israel is an embedded democracy where the countries surrounding it are not.  Its people have also suffered tremendous wrongs at the hands not only of dictatorships but also alleged democracies – and such wrongs, or at least their antecedents in thought and potentially returning future deed, continue to operate.  The environment, as perceived from within Israel, is surely one of continuing tension: to live a rubber-band life in democracy is a dreadful thing indeed.  One would hope that democracy, in itself, would assign a degree of final peace and calm.  This has clearly not happened.

As it’s not happening here in Britain.

So the Israelis exist in an environment which encourages them to fear their surroundings.  This is immoral – more so where recent history taught the Jews that to appease led to practical extinction.  I can therefore understand, even where I find it difficult to accept, the current bombing of Gaza by the Israeli state.

A human being who’s had all their freedom ripped asunder, all their family gassed, all their history burned, all their books destroyed … well, listen up, how would you react at the slightest provocation?  How would you react at the slightest sign of invasion of your personal space?  How would you react at the slightest disengagement with international law?

The best form of defence, after all, is attack.

*

You’re waiting for a “but”, I can tell.

You’re not going to get one.

Not exactly, anyhow.

The state of Israel is that single sign of hope that followed our collective responsibility as democratic nation-states through the length and breadth of World War II.  Where gas chambers and concentration camps were the terrible location of Jews in times past, a nation-state – of certain impermeability – is now their safe haven.

Even if the aforementioned impermeability is no longer so secure.

Even if the haven is sadly blood-spattered.

Even if other nations’ rights do need attending to.

We cannot forget what we allowed to happen in the name of an easier political life.

Yes.  The Palestine people have an equal right to a safe haven.  Yes.  That they do not have it is yet another shameful episode in human history – as well as yet another shameful example of environmental management.

But the Palestinians must accept, emotionally as well as politically, the absolute requirement for the memory of six million Jews to be enshrined in that haven I talk about above.  Unless and until this happens, unless it comes from the heart, those six million Jews will have lost their terribly dignified battle to peacefully do what is right – and the violent people who currently populate our planet everywhere will have won their battle to do wrong in the name of a wider justice.

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