Online accountability - part 2
26/05/2007
Legal expert
Struan Robertson
Pinsent Masons
www.pinsentmasons.com
There’s a common misconception that sites are always responsible for users' comments. They’re not, unless they check each comment before or after it appears online. Digg doesn’t check all comments and nor should it. But the trade-off for that freedom is an expectation that you’ll take complaints seriously and react quickly. The law in the US and Europe works that way, and I think it’s a sensible approach.
Digg’s liability only began when it chose to ignore the demands of the lawyers. That was a deliberate choice, yet I think it was a mistake. I heard Digg founder Kevin Rose talking on the TWiT podcast saying that they get notice and takedown requests all the time. He said they obey them when it’s (for example) a link to a zipped copy of Photoshop. But he took a stand with this, in part it seems because it’s just a number, and in part because he opposes DRM. He said the company might go down as a result. That strikes me as foolish. He shouldn’t be making value judgments about which varieties of copyright infringement he likes and which ones he dislikes if his company’s under threat.
Struan is senior associate at Pinsent Masons, a full service commercial law firm based in London. He’s also editor of OUT-LAW magazine
Legal expert
Raj Mahapatra
vLegal
www.vlegal.net
An analogy here could be to look at socially powered websites as the new equivalent of countries; in their most basic form, as a collection of individuals “residing” in a location. Currently, the trend is to make websites liable for user content. However, if we use the country analogy, we recognise that, as we don’t hold countries liable for the beliefs of their
citizens, so maybe we shouldn’t hold the website responsible for the postings of its membership. But is it this simple? Some crimes are so heinous, we could argue that we do hold the country as a whole liable. Or, if not liable, at least responsible. With this in mind, perhaps we need to evaluate how we treat socially powered websites. To do this, we need them to evaluate how they work with their “citizens”. Only once they interact with their citizens more like countries can we start treating them like the countries that they can become. Perhaps they’ll need legal systems and a method of policing. Most importantly, they’ll need to instill a sense of social awareness in their citizens, and if individuals break the social/legal code, they need to be able to mete out appropriate punishment.
The problem they have is to implement these codes in the space of months and, I suspect, this is virtually impossible. It has taken countries centuries to evolve their distinct rules. So assuming this is not going to happen, at least in my lifetime, does this mean that a socially powered website should be denied its “country” status without attempting to put in place a workable framework that allows its “citizens” to operate autonomously while benefiting the site? Or do we, as lawmakers will surely argue, punish the whole “country” for the failings of a few?
These are questions that I suspect will be debated in the coming months/years, with few concrete conclusions being reached. I’ll be watching society’s approach to what happens at Digg and Second Life, and the numerous other socially powered websites as they encounter similar problems, watching in the knowledge that we are seeing a paradigm shift towards the struggling emergence of the first virtual countries existing in community that is every bit as complex as the real one.
Raj Mahapatra is managing director of vLegal, a company with a stated aim to redefine the legal services industry
Project manager
Ane-Marie Peter
on-IDLE
www.on-idle.com
This question really splits into two: are social networking sites responsible on a professional and/or moral ground? Since YouTube was bought by Google, we’ve started seeing more policing of copyrighted material by site owners and greater enforcement from copyright owners. Prior to this, the industry was all-a-hype about the potential for brand owners reaching their audience, and less on how these sites were actually monetised. The lack of self-evident monetisation perhaps dissuaded copyright owners from taking legal action in protecting either their or their artists’ rights.
The investment by more traditional companies such as News Corporation, and established new media companies such as Google, made a big statement towards the huge potential for social networking sites to be profitable. It’s then that we started seeing more prevalent uses of disclaimers warning users about uploading copyrighted material in any form. The law here is quite clear – site owners are, in fact, responsible for any such material posted on their site.
Site owners have always been ultimately responsible for content they publish, which isn’t an issue when the content is used for marketing to advertisers, but appears to be when that same content needs policing.
Granted, that complete moderation of a site is not only incredibly time-intensive and, for most of the social networking sites, completely unfeasible – it also antagonises an incredibly fickle audience who like not only to see instant results but demand it.
But what about from a moral standpoint? What about those clips that show abuse against children and animals? Sexual assault? Or the hanging of Saddam Hussein? There is a checkbox when you upload a video to disclaim whether it contains adult material, and if so, users are requested to sign in and are only able to view the content if they’re over 18 years of age. But is this enough?
The policing of social networking sites only became an active issue once large (wealthy) corporates started to own them. The moral compass should ask whether copyright is only worth protecting when someone with money can be sued for breaching the right. Perhaps the music industry has the right idea of making an example of a couple of individuals, and thereby encouraging the legitimate download (albeit supported by the technology of being able to download and pay for one song at a time) of content. Perhaps we need a debate on the entire issue of copyright?
But, in this day and age, where are our morals, as individuals? Are we inviting Big Brother into the “free world” of the internet by a few individuals behaving badly, as is the case now with CCTV in the UK? Perhaps we should all review in good conscience what we upload for the world to see, and make the effort of reporting content that’s blatantly against not only
the law, but the spirit of the social network in the first place. Perhaps, like charity, responsibility starts at home?
There needs to be a happy ground here. It’s never appropriate to upload a video of an execution or even a story featuring a HD-DVD encryption code. Whether this comes in the form of fines for both site owners and users, I don’t know, but it will be interesting to see how this unfolds as it climbs higher on the agenda.
Ane-Marie Peter is the co-founder of on-IDLE and has a background in business management, communication strategies and technology
Ecommerce specialist
Chris Barling
Actinic
www.actinic.co.uk
Traditionally, media owners have been responsible for their content. During my lifetime, they’ve even gone to jail for it. However, the internet has transformed the landscape.
Because distribution via the web is so much cheaper than print, the sheer volume of content has exploded beyond imagination. People can blog straight onto the web, with no editing and virtually no cost. The upside has been the creation of a near-perfect market with no barriers to entry, and where the best copy rises to the top.
The trouble is that, just because something is well written, convincing and popular, it doesn’t mean that it’s true. With traditional print publications, the checks and balances that made publication harder also improved quality, and the pressure from the libel laws meant that defamatory content was mostly weeded out.
On the internet, these checks and balances are not applied, and many believe that the laws are out of date. Nobody wants the expense of a libel case to test the new landscape, so right now, reputations can be unfairly trashed online. If we want to live in a fair society, there should be some comeback. There are some possible solutions. Maybe there should be a legal requirement for any post to be traceable back to an author. Knowing that there are no anonymous postings might have a restraining influence. We could also have the equivalent of the “Press Complaints Commission” to allow people to object, with maybe powers to levy small fines and force retractions.
In the UK, the legal position of an ISP hosting a libellous blog is currently unclear. However, if the publisher directly profits from the publication, I suspect that they will be held liable – it’s not fair to have it both ways. However, making them unconditionally responsible for all content would potentially destroy the whole freedom that the internet has brought to publishing. That would be a bad thing.
Chris founded the well-known ecommerce software development company Actinic in 1996
Interactive media
Paul Dawson
Conchango
www.conchango.com
We do have the right to publish anything we see fit – that’s freedom of speech. Equally, there’s a responsibility that comes with that. Put simply, we have to accept the consequences of this action. We therefore have to be conscious of libel law, and what the potential financial or reptutational impact of what we say might be.
In this particular case, you also have to think of two more things. Firstly, it’s not Digg users who published the HD-DVD decryption – they only linked to a site that did. Surely, the people to chase down are those who published that site! If this was the newspaper world, nobody would have asked The Daily Mail to remove copies of its paper that referenced the site. They would have just accepted that the URL was out there and gone after the site itself. The second point is simply the question: “Did this site do anyone any harm?”. There are perfectly legitimate and good uses of this software. The one I use to put video on my Sony PSP from DVD makes it very clear that I should only use it for decoding my own DVDs, and only using the output for my own personal use. I personally find it tedious and annoying that if I buy a licence to watch some content, that I’m not free to move it around or change its format, when it’s still for my own personal use. Let the encryption rights holders pursue these people through the courts just like Apple did with Real when they cracked the AAC format. Don’t blame the people, man!
Paul heads up the user experience, design, branding and digital strategy team at Conchango, one of the UK’s top interactive agencies
Software expert
Ian Moulster
Microsoft
www.microsoft.co.uk
While there is almost certainly a legal aspect to this answer, which I’m not qualified to comment on, I think there’s a deeper issue around ethics and responsibility that’s more interesting to explore. The question only really becomes relevant when you consider who gains and – perhaps more importantly – who loses as a result of a piece of content being posted. There’s an interesting tension here between the positive effect of removing controls and decentralising content creation (which can lead to richer, more diverse content than a traditional controlled editorial approach) and potentially giving reign to maliciousness, cruelty or abuse. As a society we need to determine where the right balance should be, which is a tricky question to ask not just because there is likely to be a wide range of views but because most people want the best of both worlds. As yet, we haven’t found a way to make that work. For example, if you use censorship controls to reduce the abusive element, you restrict diversity at the same time. It seems you can’t have your cake and eat it in this scenario.
What we’re finding is that content providers are adopting ad-hoc approaches to this dilemma in the absence of clear agreement on how to resolve it. For example, in some cases, the content provider takes specific action to remove or block a piece of content based on either ethical or legal concerns. In other cases, the community as a whole acts to marginalise the content or undermine the credibility of the person who posted it. And Wikis take a “decentralised censorship” approach, where the community polices specific aspects of site content and can remove or change postings they deem inappropriate.
There’s no silver bullet answer to this question. Current opinion tends to favour the decentralised content creation approach taken by socially powered websites despite the risks of abuse. And without general agreement on how to limit the opportunities for abuse in this context, most content providers take a case by case approach to dealing with abusers, sometimes risking the wrath of the community in doing so.
Ian Moulster is senior product manager in Microsoft’s Developer & Platform division in the UK.
Comments
NatalieMac / 31/05/2007 / 21:55 / http://www.nataliemac.com
I think it is unreasonable to hold site owners responsible for all content posted by their users. As long as they provide clear guidelines to their users about what types of information can be posted and act quickly to remove illegal or offensive information when notified that it exists they should not be held responsible. The user who posted that information is responsible.
As for the users who complain that this is censorship and limits their freedom of speech - let them pay for their own servers and bandwidth to publish their viewpoint. Nobody's stopping them.
