Nov 262012
 
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Today, the Guardian publishes a fascinating story – a story that may have the most far-reaching of implications for democracy, free speech, online behaviours and the wider publishing industry.  Essentially it describes how an Australian jury has come to the conclusion that Google’s search engine is actually a full-blown publisher – not simply an automated disseminator of access to interesting, timely and relevant content.

Now if Google’s search, a “simple” aggregator of content, can be accused and sentenced as a publisher – or, presumably, re-publisher of sorts – by a legal system I assume is pretty similar to our own (for it’s hardly going to be more restrictive in matters of freedom of expression I would, at the very least, have thought), just think what kind of intellectual precedent the case could set for our more thoughtful judges over here in England.

Just think, in fact, what they might say about Sally Bercow and that tweet which referred “innocently” to a trending topic generated by Twitter’s very own corporate mathematics.

Just think what they might now have to consider in relation to Twitter’s responsibility for that topic and trend in the first place.

As I just tweeted on Twitter itself:

So algorithms and the companies which create them *can* be held responsible for the content they enable. Twitter (the corp) – watch out!

Meanwhile, a few days ago I was already arguing the following:

What I’m really saying with all of this is that Twitter’s Terms of Service attempt to argue that its software simply distributes and does not publish.  It takes no responsibility for the bringing together of such content – and it consequently allows form to come under one legislation and content, thus defined, to belong entirely to the user.  (Though we know that even this is not true: a user cannot normally access more than a limited number of tweets back in time, whilst companies pay Twitter good money to access on a massive scale such ancient thoughts and occurrences.)

My argument, however, would run as follows: deliberately dumbing down individual ideas into 140-character gobbets and then bringing them together automatically to create interesting streams of thought involves not just the process of distribution but also the process of transformation.  We are not just talking about giving someone else the tool to publish off their own bat: microblogging (ie Twitter) is essentially different from its much more discursive and single-authored precursor – which is to say, the blogging you see in front of you right now.  Microblogging, essentially, is collaborative writing which involves many many others – and in order for it to work someone, or something, needs to sort and filter the information.

That is to say, give it shape.  Edit and give sense and sensibility to what would otherwise be a morass of idiocies.

So who are the authors who write in a microblogging site like Twitter?  Obviously the individuals who post.  But also, surely, if we’re being realistic, the software which joins as a seamless whole the activities of so many busy worker bees; which is programmed and designed from ground up to prioritise speed of transmission over reflection; and which aims above all to indicate the latest over the lasting.

Which is why we finally come to the question I pose at the top of this post: why is a company like Twitter’s social-media software not also legally responsible for what it – basically – creates? Or at the very least enables?

But if this Australian case now proceeds to open the floodgates for “simple” search engines to be taken to court on any and every matter libellous matter arising (the truth being, of course, that they’re not all that simple – levering as they do billions of dollars of advertising revenues), just imagine how this might all impact – as the implications bed down – on the usage and abusage of social-media networks such as the above-mentioned Twitter and the inevitable Facebook.

That it spreads the burden of responsibility for statements made in a bespoke software constitution is to my mind only reasonable.  That it may mean we lose all the virtues of Web 2.0, as well as online communication more generally, should however serve to stop us in our tracks – and make us seriously wonder if this is now going to be all for the best.

Do we really want the law to become even more wound up in our daily discourse?  Is this really the right way for the interactive web?  Do we really not know of any other way of exercising order which does not remove more and more our ability to communicate freely, spontaneously and democratically with other citizens?

As the Guardian concludes in its excellently measured piece:

If the Australian decision is followed by courts elsewhere search engines and platform providers will have to be a lot quicker in dealing with requests to take down material when they are contacted by a potential claimant and they will have to be more responsive to requests to sever links to defamatory content if their “not our responsibility, contact the webmaster” response opens them up to liability.

For those of us who put material online it might mean a more hostile legal landscape. The lesson will be that not only do you have to watch what you say online, search engines will have to do so as well.

And so is it that I fear a massive return to the deep web and its darknesses, if something is not done very quickly.  Just as I also wonder whether the battles are already well on their way to being quite unpredictably – quite hazardously – lost.

I do still choose to believe that there must, surely, be another way to guarantee a future world of intelligent sharing.

It’s just that I’ve become evermore totally ignorant of the proper means to engineer and implement such a goal.


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