The freedom to self-censor – and what Twitter & Co should do about it

Paul’s recent piece on defamation in social media – in particular Twitter – has brought home to me the reality of free speech in England: it doesn’t exist.  What’s more, if you’re trying to keep on the right side of the law – however much of an ass it may appear (to unpractised eyes) to be – simply aiming to tell the truth isn’t enough to work out what you can and what you shouldn’t be saying and/or writing.  As Paul points out, quite terrifyingly to my way of thinking:

The basic principle is that a statement is defamatory if it substantially affects, in an adverse manner, the attitude of other people to the complainant or has it has a tendency to do so. This definition is very broad ranging so many ‘nasty’ statements about another person come into the range of potentially defamatory statements. Note there is no need to show that the statement does actually affect what other people think of the complainant: it is enough that the words have a tendency to do that.

The terrifying bit then comes next:

Many true statements about a person are defamatory. So to say of a convicted murderer that he is a murderer is defamatory but true. If you, and you have the burden of proving this, can prove what you said was true then you MAY have a defence available of ‘justification’. Can you prove it? See defences below!

It’s that MAY that really terrifies me.  What kind of a rule of thumb does that prove to be?  How, with such an uncertain yardstick to hand, could one ever be sure one wasn’t potentially breaking the law?  And what implications might this have for democratic discourse in our politics?

Read the rest of his post, if you want to find out more.  I’ve already linked to it on two previous occasions – it’s obviously something that, at least in my case, is proving worthy of cogitation.

And to boot, this is clearly one case where the virtual world is toughening up on the real world.  Throwaway language in a pub over a pint will have generated far worse things than the last month has thrown up on Twitter here in Britain.  Yet I don’t see too many such drinking chums finding themselves the object of the beady gaze of legal eagles looking to extract their pound of flesh – or wad of compensatory cash.

As I said some months ago, part of the problem may be Twitter’s own business model (the bold is mine, today):

[…] It seems to me that the big issue with Twitter and the law lies precisely in a question of framing.  And the framing has been done by agencies quite outside the common populace.  So whilst we suffer the consequences of the confusion thus engendered, we really are not to blame for overstepping the multitude of marks.

Twitter, Facebook and all the rest set up their stalls with the idea that the casual throwaway over-the-garden-fence kind of conversation could be replicated online with virtual tools.  Most of us thought, when we ventured onto such terrain, that we would have the freedom to extend our local village globally.  The rules would remain the same – the right to irreverent, racist, sexist and beyond-the-pale remarks would continue to be a par for the course.

What we didn’t realise at all was that our ephemeral occurrences were actually part of Twitter and Facebook’s business models.  There was absolutely no intention for the ephemeral to be treated as such.

We were indeed, long-term, the product not the customer.

These were not – as we had been led to believe – tools the common man and woman would use to exchange peer-to-peer information in the comfort of their privacy settings but, instead, tools the advertisers would use to communicate their latest sales pitches: tools which allowed such advertisers to get to know us so precisely that even our deepest prejudices would be laid bare for them to press the appropriate buttons.

So no wonder we’re getting it all so very wrong – and feeling unhappy as a result.  Twitter and Facebook are actually as resilient and permanent as an interrogation and signed interview sheet at your local police station.

As a result of this fundamental and conceptual confusion, then, deliberately perpetuated by the creators of the software constitutions in question, more and more ordinary people are going to find themselves at the very business end of double-barrelled legalese.  In truth, if we examine a little more closely the subject of defamation under English law, we suddenly realise that the democratic state we thought we lived in is heavily weighted in favour of those who have mighty reputations to protect (the bold is mine):

English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defences are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false, unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.

English defamation law puts the burden of proof on the defendant, rather than the plaintiff, and is considered an impediment to free speech in much of the developed world. In many cases of libel tourism, plaintiffs sue in England to censor critical works when their home countries would reject the case outright. In the United States, the 2010 SPEECH Act makes foreign libel judgements unenforceable in US courts if they don’t comply with US free speech law, largely in response to the English laws.[1]

To be honest, I never realised my homeland was quite so unfree.  I never realised that any defendant could be considered guilty until proven innocent.  I never realised that in what is the essence of a healthy democracy, the figure of fair comment could have such a stony ground of burdensome proof for those who are accused and considered automatically culpable until proven otherwise.

Little is left us, it would seem, as the veils of self-delusion fall from our eyes.  I thought I lived in a country where everyone was nominally equal.

I do not get that feeling any more.

The only freedom, perhaps, that we now share altogether is the freedom to self-censor our public thoughts as we begin to remake our own shaky reputations.

Google, Facebook, Twitter and a whole host of social media tools have encouraged us quite aggressively over the past decade, with their most specific and intentioned software constitutions, to reveal and bare our innermost thoughts as they occur to us, reveal themselves to us and struggle to emerge.

English law, it would seem, will now begin to roll all that back.

What an awfully confusing world this has become for anyone trying to engage with their democracy.

Especially for those who try and do it with any kind of integrity.

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.

You chose what to allow or not to allow when you defined your software objectives.

Shouldn’t those who create a virtual environment from scratch also take some degree of ownership for the activities that take place as a result?  It would, after all, be so easy to program in a pop-up screen which warned any tweeter of the potential legal dangers of a particular text in a particular legal jurisdiction.  For as we have all been rather aggressively reminded over the past fortnight or so, content is being automatically monitored on behalf of plaintiffs-in-waiting.  Which begs the question: if that can be done by content-scraping organisations on behalf of their own clients, why can’t Twitter, Facebook, Google and the like engineer into their systems similar support – but at a preventative level which would serve to avoid any problems in the first place?

That they’ve chosen not to, for very clear business rationales (my opinion there, asserted out of very good faith!), surely makes them a degree more responsible for this mess we’ve beginning to find ourselves in.

At least, to the extent that they haven’t done quite as much as they easily could have done to ameliorate a predictably complex set of social circumstances.

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.

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