Morning television got me thinking about social media, legal reform, vigilante groups and the victorian bushfires

February 18th, 2009 · 10 Comments
education

in fact, more than thinking – conversing and now writing!

UPDATE2 – Have your say

*EXTRAORDINARY Every Day lives podcast discussion

This afternoon, @dnwallace and I invited interested parties to join us via Skype in a special episode of our Extraordinary Everyday lives Podcast. @stilgherrian joined us, but unfortunately we had connectivity issues and @silkcharm was unavailable. So, if you have something to say about anything related to this issue, record 3-5min of audio as .mp3 and leave a link as a comment to this post. Dave will splice your contribution into the podcast.
@silkcharm – please read the above point and link us a short audio .mp3 of what you wish you had said!!!
Offer closes close of business tomorrow, Friday 20th Feb, 2009.

UPDATE: Some good conversations brewing

Here is how:

Yesterday morning I received a call out of the blue from Sally Moore, a producer on Channel 7’s sunrise morning television show here in Aus. Sally was looking for social media experts to comment on something to do with court supression orders on a suspected arsonist and some online activity about the accused. I have tried to be respectfully quiet about the tragedies in Victoria, especially since my own wife is a survivor from our local bushfires in the 1980’s – so I wasn’t aware of the facebook kerfuffle that had been unfolding.

So, I turned to twitter and asked ‘my network’ what all the fuss was about. Turns out a woman in Queensland had set up a facebook group naming the suspect and that various commenters had chipped in with everything from vigilante style threats to specific information under supression order from a judge concerned with keeping the process of justice on track. An e/mail and a follow up call with Sally revealed she was looking for somebody to appear on the next morning’s show to present ‘the other side’ of a view being put by a Victorian legal expert [David Galbally, "(a leading Australian QC and son of Australia’s greatest criminal lawyer" - according to Google)] seeking to strengthen the enforcability of suppression laws on the internet.

Being the inarticulate (and easily riled up) social media guru that I am, I decided there was no value in me appearing on the telly. Back to twitter to see if any of ‘my tweeps’ might want the gig – a challenge taken up by my esteemed colleague laurel papworth (@silkcharm).

The conversation that unfolded around laurel’s short TV appearance is fascinating, and in my opinion, important to continue. So, here goes…

Laurel’s first twitter ‘tweet’ suggests she is less than happy with how it went: # Sorry guys, I let you down. When he said something like “turn off Facebook in Victoria when there is a court case” I kinda lost the plot :( about 3 hours ago from web
The ‘off camera’ discussion would have been much more interesting (I might have recorded the audio of that, like I did when 7 news ‘interviewed me’ a few years back). Laurel tweets: # When the cameras were off, Mel and Mike said to me “we (journalists) can’t do it, so you can’t”. When is news ‘News’ & when is it ”chat’? about 3 hours ago from web
A bunch of us were looking for a recording of the segment online, once again twitter comes up with the goods: # RT @dnwallace: watching recording of @silkcharm http://is.gd/jTH3 #sunrisearson 33 minutes ago from TweetDeck

So, go watch the segment on YouTube, then come back and comment on these thoughts:

Galbally’s suggestion of ‘forcing facebook to remove content’ is a typical ‘top down (hierarchical)’ response to this emerging ‘bottom up (network)’ phenomonen. Going for a ‘choke point’ of web site provider smacks of the same logic employed by Conroy’s Internet Service Provider ‘choke point’ for enforcing his ‘clean feeds’.
The nature of publishing is changing dramatically thanks to the read/write web. The hard work to be done is by law makers who need a deeper understanding of what’s going on.
Equating Internet Service Providers (ISP) or Site Providers (like Facebook, myspace et al..) to mass media publishers misses the mark entirely. Like going after paper manufacturers or ink suppliers when newspaper publishers do the wrong thing.
Accountability for legal compliance must lie with the individual, and the read/write web can help with that. People who sprout illegal material online leave quite an audit trail.
Where things get fuzzy is the subtle difference between an individual exercising their voice online and publishing. Laurel made the interesting comparison between a conversation in a pub and in twitter. Further nuance in this tweet: # @stilgherrian and what if one of us accidentally published “Oh I live next door to that arsonist guy” Chat becomes News and “cya in court” about 2 hours ago from web in reply to stilgherrian

And that, ladies and gentlemen is the conversation I’m keen to continue – as comments to this blog post, in twitter and maybe even in a podcast.

Fang – Mike Seyfang

p.s. Included below are some links and twitter tweets for convenient reference. (all a bit hard to piece together after the fact).

- – -

Sunrise Infocus with David Galbally and Laurel Papworth (@silkcharm) discussing ‘Online Privacy’ within Australia

David Galbally, “(a leading Australian QC and son of Australia’s greatest criminal lawyer” – according to Google)

links:
http://delicious.com/mseyfang/sunrisearson

key tweets:
#sunrisearson (not exhaustive)
@tarale
@Bosun_McShiny
@silkcharm
@dnwallace
@fang
@stilgherrian
and follow their @tweets

- – -
@silkcharm
# @renailemay *nods* the lawyers don’t actually have to succeed in stopping stuff, they just need to be seen trying, to get paid. 11 minutes ago from web in reply to renailemay

# @renailemay the more technically impossible it is to implement a law, the more money the lawyers make sending out Cease and Desist. Ka Ching 14 minutes ago from web in reply to renailemay

# Added video of my appearance on Sunrise (thanks @bmn!) http://twurl.nl/iyitia see 5 min “we should shut down these services in Victoria”. 41 minutes ago from Tweetburner

# @deswalsh light breezy chat about communities online. It didn’t quite feel that way – more like today tonight with me on the naughty step. about 1 hour ago from web in reply to deswalsh

# @skribe yeah a bit but they didn’t prep me – look at Mel? look at camera? I didn’t get ‘fuzzy balls’ in, sorry :P about 1 hour ago from web in reply to skribe

# @fang maybe ask @stilgherrian too? I tried to pass baton to him when talking to producer, he’s always good for some intelligent snark :) about 1 hour ago from web in reply to fang

# @deswalsh Hard to take someone seriously who wants to turn off the internet anytime there is a court case. Galbally plays fear game well. about 1 hour ago from web in reply to deswalsh

# @hamishandandy there once was a man who could tweet who said this can’t be beat in 140 char I can go far & thwink of the twubble I tweet. :P about 2 hours ago from web in reply to hamishandandy

# @Bosun_McShiny I don’t have a copy of Sunrise or it’d be on my YouTube. Must confess am somewhat disturbed to be talking to a teddy bear :P about 2 hours ago from web in reply to Bosun_McShiny

# At Digital Tipping Point yesterday I was wh*ring for LinkedIn friends from the podium. Got about 20 more :P Thought you’d like to know about 2 hours ago from web

# @Warlach if every time we pirate music, God kills a kitten, I’m pretty far into teh badnezz. about 2 hours ago from web in reply to Warlach

# @Bosun_McShiny the lawyer dude wanted to turn off Facebook – and presumably youTube, wikipedia, Twitter, when there is a major court case. about 2 hours ago from web in reply to Bosun_McShiny

# @wmeissner I assumed Sunrise would want a light touch. Shoulda come in with “imagine how much $$ lawyers make, suing 4 million Facebookers” about 2 hours ago from web in reply to wmeissner

# err tweeted, I meant ‘tweeted’ not ‘published’. Though of course smack their bums and they holler the same thing. heh. about 2 hours ago from web

# @stilgherrian and what if one of us accidentally published “Oh I live next door to that arsonist guy” Chat becomes News and “cya in court” about 2 hours ago from web in reply to stilgherrian

# @earleyedition AM I a bad person???? :( about 3 hours ago from web in reply to earleyedition

# @susannadee I think that law was important when the Press were the only ones to help us form an opinion. The good/bad news is, that’s gone. about 3 hours ago from web in reply to susannadee

# @stilgherrian yeah do we really want jury made up of people who haven’t seen anything about the bushfires or arsonists – are they retarded? about 3 hours ago from web in reply to stilgherrian

# @stilgherrian you USED to be not allowed to discuss an election 48 hours beforehand. THAT law got changed. Unenforceable laws get changed. about 3 hours ago from web in reply to stilgherrian

# @artywah nah the TV show was specifically “TV can name him and say his State, that is all” and bloggers/Facebook are doing more than that. about 3 hours ago from web in reply to artywah

# TV is odd, you get about 2 minutes to speak and then -whoof!- it’s gone. I like blogs better. Nice long tail to the content *wags tail* about 3 hours ago from web

# @Tarale sorry I wasn’t clear “journalists can’t discuss a suspect in News so you guys can’t chat on Twitter about him” more or less :P about 3 hours ago from web in reply to Tarale

# When the cameras were off, Mel and Mike said to me “we (journalists) can’t do it, so you can’t”. When is news ‘News’ & when is it ”chat’? about 3 hours ago from web

# Anyone get the feeling it’s the lawyers that will make money from trying to enforce unenforceable SN laws? Wish I had time to say that :P about 3 hours ago from web

# Sorry guys, I let you down. When he said something like “turn off Facebook in Victoria when there is a court case” I kinda lost the plot :( about 3 hours ago from web

# *yawn* where’s my kawfee? >:( about 6 hours ago from web

# ok bed for me, at the Martin Place studio at 7:15am – filming Sunrise on Channel 7 about 8am I think. Wave at the telly when you see me! about 13 hours ago from web
- – -
@stilgherrian
# RT @viveka: Publication is an archaic term, parliaments should have started figuring out what to do about that in ‘94. [Yet here we are.] about 2 hours ago from twibble

# @SilkCharm Indeed. Under current law, tweeting IS publication. Whether it SHOULD be is my question. I have no answer. Yet. about 2 hours ago from twibble

# @timdunlop If Hockey and Coonan are the solution, you’re asking the wrong question. (via @jason_a_w) about 2 hours ago from twibble

# @jason_a_w Oh we probably agree on many things. It’s just that where we differ, I’m right and you’re wrong. ;) about 2 hours ago from twibble

# @SilkCharm Well that chat is ALREADY “publication”, but so is “News” equally liable. Perhaps moreso if bigger audience, trained. about 2 hours ago from twibble

# @SilkCharm Dear Chairman Rudd, who is reviewing these laws, and on what timeframe? about 2 hours ago from twibble

# @SilkCharm Precisely my point. The law is woefully outdated. How many people realise every tweet is, legally, “publication”? about 2 hours ago from twibble

# @SilkCharm Before people were hyperconnected, the impact of non-journos breaking the laws was minimal, juries could be screened. ow…? about 3 hours ago from TweetDeck in reply to SilkCharm

# @SilkCharm His statement about journalists and non-journalists is correct. Suppression orders and contempt of court laws apply to all. about 3 hours ago from TweetDeck in reply to SilkCharm
- – -
# @dnwallace I agree, it’s the responsibility of the individuals, not Facebook. #sunrisearson 13 minutes ago from TweetDeck in reply to dnwallace

# @Zombie_Plan No, the guy on Sunrise who wants Facebook shut down in Victoria because of the court order around the arson #sunrisearson 13 minutes ago from TweetDeck in reply to Zombie_Plan

# @justkyp Facebook is just too big. The only way that kind of thing would get picked up is if somebody reported it. #sunrisearson 21 minutes ago from TweetDeck in reply to justkyp

# @viveka His idea was completely unreasonable. People will talk about things, online or offline. Does he have any idea how BIG facebook is?! 22 minutes ago from TweetDeck in reply to viveka

# @monnie Hmm, perhaps. Thing is I don’t know when I’m free for a bit. Barcamp and Soundwave 22 minutes ago from TweetDeck in reply to monnie

# @SilkCharm Well done on Sunrise today. The other guy hadn’t a clue and wasn’t going to listen, but you did well. #sunrisearson 23 minutes ago from TweetDeck

# Well, that angried up the blood. Sunrise usually does though: I think that’s what Sunrise is for. #sunrisearson 24 minutes ago from TweetDeck

# WTF?! Shut down Facebook in all of Victoria?! Jeez, this guy is an idiot!! #sunrisearson 27 minutes ago from TweetDeck

# This is silly. How on earth are Facebook supposed to be held responsible for what’s said? Are they supposed to monitor it? #sunrisearson 28 minutes ago from TweetDeck

# RT @dnwallace: watching recording of @silkcharm http://is.gd/jTH3 #sunrisearson 33 minutes ago from TweetDeck

# @dnwallace Thank you thank you thank you!! #sunrisearson 33 minutes ago from TweetDeck in reply to dnwallace

- – -
@dnwallace
# @Tarale I think individuals should be held responsible for whats said. It’s the definition of “publish” and the medium thats not understood 22 minutes ago from twhirl in reply to Tarale

# @Bosun_McShiny neither do lots of people on facebook understand the concept of permissions and who can and cant read what they write. 27 minutes ago from twhirl in reply to Bosun_McShiny

# @Tarale *bows* 33 minutes ago from twhirl in reply to Tarale

# watching recording of @silkcharm http://is.gd/jTH3 #sunrisearson 35 minutes ago from twhirl

# in the orifice about 1 hour ago from twhirl

# intersting, just saw my ex boss on a tv commercial about 12 hours ago from twhirl

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10 responses so far ↓

1 Emma // Feb 18, 2009 at 11:09 pm

I think a fundamental error in the thinking displayed by the QC interviewed is the “top-down” thinking you mentioned. Rather than considering individual accountability – a major aspect of social media (each person is responsible for their own communications, and we base our opinions and allow influence depending upon those communications) – he has instead approached it from a “corporate” perspective – the idea that a single entity above can be responsible for the comments of its ’subordinates’. This, of course, completely ignores the entire libertarian “each for their own” ethos of social networking. My gut instinct (as someone whose ‘expertise’ is in ethics rather than this crazy social media stuff) is that, as common carriers, Facebook would not be liable (especially as their servers aren’t based in Australia, and thus may not fall under jurisdiction here) but rather it would make more sense to prosecute the individuals who make the comments in contempt of court – holding each accountable for their actions, rather than holding Facebook (or twitter, or myspace, or any other provider of services on/related to the internet).

All of these legal/ethical issues aside, though, if you make a comment on facebook you’re identified by name (not to mention all the other identifying details there). Why on earth didn’t the cops think “hey, let’s go arrest the people in contempt of court who have conventiently done this under their real name” rather than making a giant beatup with teh intarnets being the completely overrated (and inaccurate) badguy?

Bosun_McShiny’s 2c.
2 mseyfang // Feb 19, 2009 at 7:10 am

Dear Ms McShiny,

I think we are converging on a theme here around the individual responsibility vs ‘corporate sub-ordinate’ as you so eloquently put it.

However, I might just find myself siding with mr grumpy lawyer when anyone brings out the old ’server not based in your legal jurisdiction’ chestnut. That is an argument founded on an even worse mis-match of technology advance and legal stodginess. If any social-media aware geek ever brings that ’smarte arsed technicallity’ up in front of me I will slap em!

Thanks for the 2c

Fang – Mike Seyfang
3 Kimota // Feb 19, 2009 at 9:01 am

I’ve already blogged and commented extensively over at “Blogging the Arsonist” http://www.netregistry.com.au/blog/?p=99 and on Laurel’s original posts.

I have to side with Stil here – a tweet is publication, a blog post is publicatino and all are liable under the law. To suggest otherwise would be to allow anarchy where people can say or do what they want under the guise of social media. It isn’t up to the lawyers to catch up. e have to take responsibility for the community we want to continue, otherwise we risk forcing those with less understanding to make the regulatinos and changes necessary to solve these issues.

Let’s stop the argument that it’s just too hard. If we admit defeat, we lose. It’s not an excuse to allow trials to be derailed because we can’t envisage an internet that can account for these important issues.
4 Emma // Feb 19, 2009 at 10:11 am

Fang – as I said, IANAL. I agree with what you say about servers not being in jurisdiction as a stupid reason to not prosecute – however, as the law currently stands, that’s how it works (as far as I’m aware). I don’t, however, think that facebook should be held liable for what others put on their site unless they’re issued with a takedown notice and ignore it – ethically, at that point they know there’s a problem and if they don’t do something about it then it suddenly becomes theirs. Prior to that, you can’t reasonably expect them to know everything on their site, and Laurel’s point about unenforceable laws is very relevant to this.

If we start saying that every website is responsible for every piece of data that goes their way, even if they’re not aware of it, then why on earth are postal services, phone companies, and internet connectivity providers exempt from this under the common carrier laws? I think that this protection needs to be extended to internet service (not just connectivity) providers in order for the law to be ethically consistent. The law, as it stands, means that an individual is responsible for a letter, phone call, or email that breaks the law, not the vehicle by which it is carried. If we’re being consistent, the same applies to any carrier, which I would argue that Facebook, Twitter, Blogger, Livejournal, and every other user-created content site are. Until Australia Post reads all of our letters, we can’t expect Facebook to read everything submitted to their site.

From my perspective (keep in mind, again, that I’m thinking from an ethical point of view), it’s the responsibility of service providers to ensure that people making use of them are aware that they are publishing (in the legal sense of the term), and it’s the responsibility of the individual to make sure they don’t break the law. If someone publishes on the internet in contempt of a court supression order, then arrest that person. Unless the provider didn’t inform them that this was publishing, then I don’t think they can be remotely held liable.

I’ll have to put my thinking hat on and write a proper post about this. I’ll let you know when it’s up.
5 Jack Herrington // Feb 19, 2009 at 2:45 pm

The more I think about it, the more pertinent Laurel’s analogy of the conversation in the pub becomes, not for the reasons I think Laurel advanced it but for the comparison between Facebook and the pub: no one expects publicans to monitor and shut down conversations, however illegal they might be.
6 Kimota // Feb 19, 2009 at 3:36 pm

No one expects the publican to do so but you’d be an idiot to not expect Facebook to crack down on bad behaviour on its site. The Facebook groups were threatening and abusive – the sort of behaviour that could well get you thrown out of said pub, in fact.

And at the risk of repeating myself as I’ve made a lot of comments on this topic today – a conversation in a pub can be construed as a private conversation (unless the guy is shouting it from on top of the jukebox). A conversation on Facebook is not – it is public broadcast and constitutes publication under the law.

Many people may not realise this, but maybe it is time they did before the defamation writs start landing on people’s mats for the bad tweet or abusive blog post.
7 Leanne Fry // Feb 19, 2009 at 8:16 pm

Agree with Kimota. It all turns on how far the ‘publication’ reaches. The web has turned us all into global communicators (not going near the publisher definition!)
Good communication requires you to think about your audience – the purpose, the intent, the method, the words, your reputation. Venting your opinion (informed or otherwise) is an entirely different thing. I can tell the difference between the two.
8 Emma // Feb 20, 2009 at 9:15 am

Hey Mike,

I’ve got a post up about this (a bit more in depth than my comments here), linked it to you on twitter. Take a read and tell me what you think?
9 mseyfang // Feb 20, 2009 at 3:42 pm

Typo in Emma McShiny’s link on her previous comment.
The post you want is at:
http://antiquesong.blogspot.com/2009/02/sunrisearson-event-and-some-thoughts.html
10 TPN :: The Extraordinary Everyday Lives Show » Blog Archive » The Extraordinary Everyday Lives Show #059 - Shut Facebook Down // Feb 22, 2009 at 7:52 pm

[...] Laurel @silkcharm Papworth on Sunrise morning TV, continuting the conversation… * My BLOG POST with links to many of the background convesations * @stilgherrian joins us * [...]