Apr 152012

With apologies to those of you of a rather more delicate disposition, here are some swear words.

In Spanish, “hijo de puta” literally means “son of a whore”.  I suppose it can also very loosely translate as “cunt”.  Meanwhile, “de puta madre” literally means “of a whore-mother”.  I suppose it can also very loosely translate as “the very best thing in the world”.

Such are the complexities of language.

I’m not sure we’re really aware of the implications of such complexities.

Sunny reports today on this rather unhappy case which appears to involve a tweeter being convicted of swearing on Twitter:

A blogger and tweeter – Olly Cromwell – was found guilty on Friday, 13th April, simply for swearing at a Bexley, London, councillor in a Twitter message.

The background to this case does, however, seem a little more complex than this (to be fair to Sunny he does then go on to explain some of the salient ins and outs of it), and there is even – at least for me – a whiff of potential super-injunction in the air.  Is, for example, everything as it should be in the council which appears to be involved at least tangentially?  Nor am I entirely sure whether posting names and addresses of sitting councillors should be counted as an offence – when I was a parish councillor, I’m pretty sure my address and even telephone number were listed on the parish council’s website and other documentation.  Clearly material in the public domain.

What might conceivably be considered a potential offence is, however, encouraging the committing of violence against an individual after posting details of where they live.

I’m not saying that’s what happened here – I’m just trying to understand what appears to be a very murky situation.

Sunny goes on to indicate that the prosecution has stated the following:

The prosecution alleged he called a senior Bexley councillor a ‘cunt’ and are seeking a custodial sentence of 45 days for each letter of the word.

Now without knowing the implications of the law behind the above-mentioned situation, this does seem a manifestly absurd circumstance.  With such an argument, we could end up playing a Kafka-like game of legal Scrabble.  If, for example, Cromwell had used the word “cock”, would the prosecution have asked for an extra few days for the letter “k”?  Or if the word “bastard” had been used instead, could we have seen him banged up for seven letters and two syllables?

Paul leaves a comment at the foot of Sunny’s piece which attempts to provide some context to the whole case.  I reproduce it here in full:

a) What has this got to do with Bexley Council? I can’t immediately see any suggestion that the council, as an entity, has had anything to do with this? It may simply be a result of a complaint either by the cllr or by a third party.

b) He can’t have been charged on Friday if there was a pre-trial hearing in December. The charge must have been laid previously in order for a PTH to take place

c) Prosecutions don’t ‘seek’ particular sentence values in British courts. Their jobs is simply to charge and prove guilt in the case of a not guilty plea (except in the fairly rare occurence of a Newton hearing, where guilt is already established but there is then a process to argue out the seriousness of the offence, and even then the prosecution wouldn’t normally argue for a specific level of sentence). It is for the judiciary/magistracy to apply within the parameters of the law, and with a view to sentecing guidelines. I assume (for now) that the 6 months figure is simply the maximum for the sec 127 charge in question. Sentences are rarely the maximum, which are often very high relative to the charge in order to provide flexibility.

The whole thing looks ridiculous but there are some bits in this and the linked reports that don’t hang together.

It certainly does seem strange.  I’m inclined right now not to come down either on one side or the other, but simply to wonder whether what I wrote recently about Twitter’s own business model isn’t directly responsible in some important way for the increasing numbers of problems we’re having with what we say supposedly “ephemerally” on its network:

[…] 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.

And as I then went on to underline:

[…] Twitter and Facebook are actually as resilient and permanent as an interrogation and signed interview sheet at your local police station.

Which does make me think that sooner or later a legal defence might be mounted with the above-described business model as an obvious explanation for, as well as a direct cause of, very many of the ills that are afflicting social network users across the world.

Even, that is to say, in allegedly democratic countries.

I also am minded to ask the following question: if I used the Spanish word “gilipollas” – probably a closer and better translation of the English word “cunt” – to describe on a mainly English-language Twitter stream the characteristics of an English-speaking person I summarily disapproved of, and in that clearly unephemeral way we must now get accustomed to, would the British legal profession eventually consider me guilty of some crime?  And would they strive to give me 45 days for each letter of the word in question?

If the answer to both questions was – eventually – a yes in each case, this would surely be the first time in the history of the world where verbosity was punished by a profession hardly noted for its brevity, and where the many wonders of a creative bilingualism were punished for their literary ingenuity.

On a day Google’s Sergey Brin accuses Facebook of carving up the open Internet, it would be fascinating – if also terrifying – to conclude that the British legal profession actually wants to punish us in terms of the register of language we use.

For here’s another thought to be going away with: just imagine if Cromwell had described the councillor in question as being a “wally” or a “moron” – or simply, quite straightforwardly, a “liar”.  Would any or all of those have passed muster where “cunt” clearly didn’t?  Or are we getting to the point where even such mildly unparliamentary language will also end up being policed on social networks?

As if there weren’t enough criminals already allegedly perambulating through the ether, they’re now looking to criminalise a whole new generation of techno-savvy communicators.

First, they pop the sweet in your mouth; then, they take it away.

The way of the world from the origins of the universe perhaps?

And I’m not even sure what’s exactly wrong about all of the above – but something about this social network stuff is beginning to smell extremely bad.

Follow the money, my dear friends.  Follow the money.  Those business models I mentioned … mark my words, that’s where the crux of the matter will finally lie.

Apr 142012

I had this conversation the other day at the Political Innovation meet-up on gaming and policy-making.  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.

Did you realise that when you got onboard the ship of social networks?  I’m pretty sure most of us really did not.

Mar 292012

Recently, a young man was sent to prison for racist remarks about a footballer who collapsed on the field of play.  The famous, or perhaps infamous, Twitter Joke Trial before it provided plenty of grist to the legal and constitutional mills.

These days, any of you who occupy the field of play that is Twitter or Facebook will surely be aware there are specific risks in posting “controversial” comments – not only about certain subjects in particular but also, especially lately it would seem, almost any subject in general the lawyers can get their clever hands on.  Whilst the mainstream press and media have legions of lawyers to doublecheck their every move, we who tweet, update our Facebook statuses or blog on this and that are less able to fully understand the implications of everything we say.

In part, this is because the mode of discourse of such social networks is throwaway conversation.  And yet whilst throwaway conversation would appear to have been how it all started out, it’s clear from recent events that this was never contemplated in the business models of these corporate behemoths of communication.  From Twitter’s US Library of Congress archiving agreement and exclusively monetised fire-hose access to Facebook’s impositional timeline, all these marvellous Web 2.0 tools have clearly been developed in order to provide very permanent content – quite the opposite of how they originally sold it to us.  All this time storing away every single foolishness, whilst, all the time, giving us the impression we had been involved in virtual chats with our private neighbours over shared garden fences.

So what is the result of all of these diversionary tactics?  Well, the best of all possible worlds for the enablers of such tools and the worst of all possible worlds for ourselves.  Whilst court case after court case limits the liability of the framers, we as individual users – as real people – become totally, entirely, legally and seriously responsible for everything we were tossing lightly into the ether.  The long-term implications are, then, quite terrifying: we are now pointedly and precisely liable for our Facebook groups, our conceptual explorations, our brainstorming of ideas, our insults and our irony, our parody and our barefaced cheek – indeed, anything and everything that in an offline space of municipal integrity occupied the much safer area of analogue privacy.

The growing objective to contain social networks and media within very public and corporate law is nothing but one massive anti-democratic trap we’ve all fallen into.   And I really do not see any way out of it – except, perhaps, to decidedly go back, Luddite-like, to the analogue unconnected world of yore.

Unless, of course, those who promote open source ways of doing and seeing can conceive of a different way of allowing society to talk to itself that does not include the notion of private spaces for public use.

It is that freedom of municipal space we need to recover for ourselves and for the benefit of our democracy.  Only then can we shrug off the fear that our every move is being tracked and checked in order to see how an error of judgement might be monetised by the already powerful.  For that, precisely that, is what I suspect is going to be happening very shortly to a significant minority of us.

And this fear, this very real fear, is something we need to rapidly disabuse ourselves of – especially if, over the next few years, our democracy is to stand a fighting chance of sticking around in anything like the healthy shape we may, in hindsight, realise it once reasonably had.

Feb 092012

Yesterday, I described how it looks like several forces from different sides – the moves to censor social media such as Twitter, Facebook and Google+ on the one hand; the need to legally exempt parody from copyright law on the other – are moving humour via electronic communications towards some kind of legal figure not unlike that of the court jester of old:

[…] is this the final destination of humorous electronic communications?  To be sanctioned, registered, regulated and allowed by some all-powerful institution of legal remit?

Today, via this tweet, Paul Flynn’s intervention in the House of Commons on this very same subject has come my way.  I couldn’t help starting off by smiling just a little wryly – only to end up guffawing wildly.  (Now I bet you haven’t done that in a while.)  From Parliament’s own official record, and reproduced in full below:

7 Feb 2012 : Column 12WH
10.9 am

Paul Flynn (Newport West) (Lab): I congratulate the hon. Member for Perth and North Perthshire (Pete Wishart) on obtaining the debate, and I apologise for the fact that I must depart early, because of Select Committee duties.

The hon. Member for Cities of London and Westminster (Mark Field) has reminded me of the extraordinary genius that produced “Peppa Pig”. In the past fortnight I have seen Père Cochon and Maman Cochon, watching on Gallic television, as I do frequently—and there is a Dada Moch and a Mama Moch—in versions of “Peppa Pig”. Why should young children including my many grandchildren be fascinated by a mutant pig with both eyes on one side of her face? That, I presume, is explained by the nature of errant genius.

I speak with a special interest in the matter, because the Intellectual Property Office has the great good luck to be located in the wide open spaces of Newport West. When it was the Patent Office, its relocation was cited in the Lyons report as the exemplar of a splendid, profitable and intellectually successful relocation. I remind the House that the role of the office, which is very difficult and taxing, is

“to help manage an IP system that encourages innovation and creativity, balances the needs of consumers and users, promotes strong and competitive markets and is the foundation of the knowledge-based economy.”

That is a difficult task at the best of times, but it is near impossible to balance those priorities in the amazing world we are in, of technologies that extend our horizons in so many ways. While such tumult is going on, it is difficult for any of us to tell what the outcome will be or what the rules should be.

The hon. Member for Perth and North Perthshire discussed the use of parody. There is a lesson there. You may recall, Mr Caton, a parody of a song called “Empire State of Mind”, by Jay-Z and Alicia Keys. It was parodied by a group from, of all places, Swindon. That parody was called “Ymerodraeth State of Mind”, and contained the immortal line, “Newport, Newport”; it was then also parodied. A parody of the parody was made by the staggeringly talented Goldie Lookin Chain—a group with immense chutzpah. They made a version subtitled “You’re Not From Newport”—which of course is the most deadly insult one could offer anyone, particularly Cardiffians. It is the most withering thing one can say, as it exposes their deficiencies. Perhaps I should declare an interest, as whereas the original parody drew attention to bigging up the Welsh Assembly, the authentic version, sung in the cadences of Newport, suggested bigging up local Members of Parliament. Clearly that is a message of great value, and I wonder whether I should have mentioned any profits that the band made in my declarations of interest. The parody of a parody had 910,000 hits on YouTube, which is very impressive—nearly 1 million. However, the original version by Alicia Keys had 127 million on YouTube alone, let alone the rest of the world.

We must see such things in context. We want the fun of mockery in songs. The one in question gave many of my constituents great pleasure. When there is a clash between the interest of the small-scale creative industries and creative individuals, and huge businesses, with their almost infinite resources enabling them to persuade,

7 Feb 2012 : Column 13WH

buy access and get the ear of Prime Ministers and others, I think most of us instinctively know where our interest lies. We should also consider those who get great pleasure from the availability of music now, and the way it can be downloaded. It is impossible to put that genie back in any bottle. That will continue, and we cannot make rules to stop it.

In support of what the hon. Member for Perth and North Perthshire was saying in defence and promotion of the creative industries, I would say that the suggestion that the future patent court should be sited in the overcrowded cities of Paris, Munich or London is regrettable, when there is wonderful habitat waiting for it in the city of Newport. It seems extraordinary that that is not being considered. I congratulate the hon. Gentleman on securing the debate, and I hope that the voice and interests of the creators of property from which many others make huge sums of money will have the primary consideration in the difficult and bewildering decisions before us.

Now there’s a court jester if there ever was one – that is to say, a man with the legal right to poke fun at and say home truths about the most powerful man in the land without fearing the heavy hand of the law.

Perhaps he will end up being the first court jester in history who chooses to defend the right of the rest of us to feel similarly free and able to joke in public without fear of similar recourse.

Further reading: Paul Flynn MP’s own blog can be found here.  Looks like it’s a real blog too.  All credit to him.  Glad I stumbled across it.  Even if I am late to the party …

Feb 082012

Today, a couple of events coincide in horrible harmony.  For me, it all starts off with this tweet from Carl:

@Markfergusonuk God is dead. Marx is dead. Satire is dead. I’m not feeling too good myself…

Referring, of course, to today’s ongoing proceedings in the Twitter Joke Trial.

Meanwhile, I read that the always excellent Open Rights Group has decided it is time we need to institutionalise the urge to be funny (pertinent links available at the original post):

Open Rights Group and a coalition of campaigning organisations (Greenpeace, Action Aid, Global Poverty Project, Church Action on Poverty, and Campaign Against the Arms Trade) have today written to Baroness Wilcox at the Department for Business, Industry and Skills to highlight how, in the absence of a parody ‘exception’, copyright affects our ability to campaign as effectively as possible.

In the absence of a parody exception, copyright effectively gives copyright holders a veto over activity society should be encouraging – legitimate creative or critical engagement with the cultural works around us. The problems were laid clear last year by the treatment of Greenpeace’s campaign using Volkwagen’s ‘Star Wars’ adverts.

We’ve been running a website about the need for a new exception, with support from the likes of comedian Graham Linehan, B3ta.com and the film maker Alex Cox, because we think a new exception is necessary. You can help by signing our petition or, if you make parodies and are affected by copyright, you can tell the consultation team. 

And it was only yesterday that Dave Winer retweeted a baleful plea from someone for us to raise a petition to return to Web 1.0.

Which is why I’m really not sure if it’s actually Web 1.0 we need.  A simple standing-still right now in the Web 2.0 we’ve come to love would probably do me fine.  I’m not the most demanding of souls. 

In reality, I’d rather be inclined to wonder if what was approaching our virtual societies at the speed of a runaway train wasn’t in fact the Web 3.0 everyone once so eagerly predicted but must surely now be fearing.

A world where every kind of comment is open to copyright and trademark battles is not a world I would wish this to become.  Nevertheless, it may – one day – serve to define the essence of that Web 3.0.

The very fact that an organisation as dedicated to free speech and digital liberties as ORG sees the need to regulate our right to be funny does seem terribly symptomatic of the lack of real freedoms that we are rapidly accumulating.  We are, indeed, I would argue, in danger of returning to the time of the court-jester figure of yore, the political significance of which was as follows:

The Royal Shakespeare Company provides historical context for the role of the fool:
In ancient times courts employed fools and by the Middle Ages the jester was a familiar figure. In Renaissance times, aristocratic households in Britain employed licensed fools or jesters, who sometimes dressed as other servants were dressed, but generally wore a motley (i.e. parti-coloured) coat, hood with ass’s (i.e. donkey) ears or a red-flannel coxcomb and bells. Regarded as pets or mascots, they served not simply to amuse but to criticise their master or mistress and their guests. Queen Elizabeth (reigned 1558-1603) is said to have rebuked one of her fools for being insufficiently severe with her. Excessive behaviour, however, could lead to a fool being whipped, as Lear threatens to whip his fool.[1]

Wikipedia goes on to divide jesters up into two clear types:

One may conceptualize fools in two camps: those of the natural fool type and those of the licensed fool type. Whereas the natural fool was seen as innately nit-witted, moronic, or mad, the licensed fool was given leeway by permission of the court. In other words, both were excused, to some extent, for their behavior, the first because he “couldn’t help it,” and the second by decree.

Distinction was made between fools and clowns, or country bumpkins. The fool’s status was one of privilege within a royal or noble household. His folly could be regarded as the raving of a madman but was often deemed to be divinely inspired. The ‘natural’ fool was touched by God. Much to Gonerill’s annoyance, Lear’s ‘all-licensed’ Fool enjoys a privileged status. His characteristic idiom suggests he is a ‘natural’ fool, not an artificial one, though his perceptiveness and wit show that he is far from being an idiot, however ‘touched’ he might be.[1]

So is this the final destination of humorous electronic communications?  To be sanctioned, registered, regulated and allowed by some all-powerful institution of legal remit?

Where is this all leading us?  Where will it all end?

And just in case you were wondering, this is no joke.

Feb 062012

Remember the Twitter Joke Trial?  If not, refresh your memory here.  In particular, this unwise tweet:

23. Later, on 6th January 2010, Doncaster Robin Hood Airport was reported as being closed due to adverse weather conditions. The Appellant became aware of the closure through an alert on “Twitter”. In response to hearing of this closure of the airport, the Appellant posted the following “tweet”:-

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!

Now compare and contrast the above with this story from Political Scrapbook tonight:

  […] it is Rachel Sylvester’s vicious briefing from an anonymous Number 10 source which will give the health secretary nightmares:
“We’re back to square one,” says one exasperated insider. “Andrew Lansley is just a disaster.” Dogged and determined at his best, the Health Secretary is at his worst described as a “law unto himself”

And it gets worse:

“Andrew Lansley should be taken out and shot,” says a Downing Street source. “He’s messed up both the communication and the substance of the policy.”

So whilst on the one hand it’s a punishable offence for a voter to use an electronic means of communication to make – clearly – foolish comments about the security of a public space, on the other it’s perfectly all right – via an august British newspaper – for a government communications professional to “playfully” threaten the life of precisely the Secretary of Health with summary, and presumably state-sanctioned, execution!

One law for the voter then, another for the spin doctor?

Nov 242010

The Twitter Joke Trial indicates how powerful words still are in a society long – and heavily – influenced by the image.  Another story this morning confirms much the same:

A British member of the European parliament was thrown out of a debate on Wednesday, after quoting Nazi slogans in German in the chamber.

‘Ein Volk, ein Reich, ein Fuehrer (One People, One Kingdom, One Fuehrer),’ said Godfrey Bloom from the United Kingdom Independence Party (UKIP), which wants Britain’s exit from the EU.

To be honest, I think the phrase in question can also be translated as “One people, one nation, one leader” – which, for the emotionless Anglo-Saxons amongst us, may hardly seem – at that dispassionately neutral and entirely semantic level we may choose to inhabit – to make it worthy of any considerable discussion.  What’s more, those of us who find ourselves here in Britain choosing to be utterly unaware of historical precedent, suffering as we currently are at the hands of an awful two-headed Coalition government, might respond by saying: “Yes please, a bit of that would come in very handy right now!”  If only we could build the foundations of a cohesive society with a clear-sighted government that cared to understand the importance of truly being in this all together …

Intentionality cannot be excised, however, from the plain and simple meaning that words enshrine.  And the MEP in question clearly intended to reference the supporters of Nazi Germany and, by implication, their dreadful legacy.

Not good stuff to be happening at the heart of European integration.

But then words are like that: the baggage they contain is both highly personal and inexactly shared.  Which is what makes writing such a beautifully hit-and-miss affair.  And what makes politics such a dangerous and demagogic matter.

Nov 242010

Via David Allen Green today, this thought came my way:

Our greatest legal blogger @Charonqc introduces the apt phrase “post ironic Britain” at http://bit.ly/g20X1M re #TwitterJokeTrial

Meanwhile, Charonqc’s full post can be found here.

The problem is that we’ve been in the grip of post-ironic Britain for quite a while now.  Possibly all our history, in fact.  The sensitivities of small “c” conservative heartlands – whether Tory- or Labour-voting – have been with us as a brake on free thought and broadmindedness for almost ever and always.  From the “Lady Chatterley’s Lover” trial in the early 1960s to the claustrophobic nature of the traditional English village, hypocrisy and cant have never been far from the British soul.

And hypocrisy and cant do not countenance the freedoms of insensitive honesties.

But the process is not limited to the actions of individuals happy to describe themselves as conservatives with a small “c”.  Those on the so-called “progressive” side of politics have also played their part in creating the conditions for the Twitter Joke Trial to reach its unhappy, post-ironic conclusions.  At the hands of their well-meaning political correctnesses, humour has become a high-risk activity, with criminal conviction staring us all in the face.  Much as the Nazis were allowed to ride to power on the back of a more widely-shared distrust of Jewish culture and belief, so tolerance of judicial and political intervention in irreverent content and social discourse is unhappily high and has prepared the ground for awful actions on the part of the state. 

Of course, I’m not arguing in favour of a society which is generally offensive to its component parts.   I’m simply suggesting that the fact certain people may take offence should not be the only – nor even determining – factor in how we judge the level of perceived risk generated by such potentially inflammatory discourse.

Farmers burn stubble every autumn.  We also may need our society to regularly go through analogous processes of catharsis to maintain a steady bearing on where our compass of common sense should lie.

We live dangerously when we give up our right to be offensive without fear of criminal retribution.

And I’m afraid this already happened a very long time ago.