All the fun of “citizen journalism” with none of the ethics and responsibility

19 02 2009

 

This type of arson is wrong, too.

This type of arson is wrong, too.

Popular social networking strategist and commentator Laurel Papworth was fairly well savaged on Sunrise this week by its hosts and David Galbally QC. I’ve a lot to say about the standard of debate on Sunrise but snideness aside: discussing controlling content on a network like Facebook requires at least an understanding of what Facebook is. David Galbally might be second only in eminence to his father as a criminal lawyer but it appeared that what he understands about Facebook could be etched on a small pair of handcuffs. 

 

Even the conversation was badly billed. Taking down Facebook posts about an alleged arsonist is not about the arsonist’s “online privacy”, it’s about his right to a fair trial.

The Silicon Federation blog has already taken Sunrise to task for asking the wrong questions. Asking the right questions would have been the start of a better discussion.

Online privacy

But was either side asking the right questions?

Laurel has subsequently posted:

“So calls to turn Facebook off in Victoria or to insist Facebook removes photots and videos and material relating to alleged suspects is [naive] at best. Irrespective [of] what the courts say.”

Respectfully (and I wouldn’t approach @SilkCharm any other way), that’s not the point either. 

The point remains an accused person’s right to a fair trial. She is absolutely right that it is ludicrous to expect Facebook even to be aware of every trial in every jurisdiction in the world with internet access. It boggles the mind to suggest that, once it had amassed this legal knowledge, Facebook could or should filter every post that might touch on a matter. I wonder if Galbally is envisaging an unimaginable number of human editors or an algorithm so sophisticated one’s mind would snap just thinking about it.

But it is not ludicrous to expect individuals in the appropriate jurisdiction to obey the law or face the consequences. Sites like Facebook link every activity to a user so it is possible to find and prosecute an individual, even if you couldn’t get Facebook to do anything about it. Sure, the long arm of the law won’t catch everyone, but a high profile contempt case for a ringleader on Facebook would send a message.

Of course there are sites that allow anonymity and the activity might move “underground”, as criminal activity often does; of course you can’t catch everyone; of course people posting outside Australia wouldn’t be breaking the law; but to admit defeat because you can’t prosecute everyone is like saying Coles might as well start selling booze, porn and drugs to kids because they’ll always be able to get their hands on them anyway. 

As a community — the word that trips most easily off the lips of all who talk Web 2.0 — we have decided on certain standards of justice. If we want something different, it should be we who decide it, not Facebook and its TOS (cf argument on the Silicon Federation blog). 

Laurel goes on to write about the 88,000 webpages referencing her:

“How many links will I have in another 3 years? A million? And what about the upcoming generation? Removing their baby photos, graduation videos whenever they end up in court? The photos their relatives and friends and strangers have taken? Even if YOU don’t use Facebook, someone in your social network does – betcha they have a birthday party photo with you in it.”

But who is asking that the arsonist’s baby photos be removed? No one. If the alleged arsonist had been written about in the newspapers for winning a gymkhana as a child or as chairman of last year’s fete committee, no one would be asking them to purge their archives. The request to Facebook, according to the Age, was aimed at “Facebook vigilantes” who published the alleged arsonist’s photo and address after the charges were laid and because they were “frustrated at a court order protecting him”. 

That is an altogether different beast than trying to erase information innocently published about this about this man before he became an accused arsonist. This was a court-ordered request to prevent a lynching and must be obeyed by us all, regardless of Facebook’s stance.

Liability here is at the very least on the individual and if individuals think Facebook will be the only target of lawyers, they’re in for the rudest shock.

This is the age of the citizen journalist and his and her new responsibilities.

 

BTW if you’re in any doubt that we’re all journalists now, see the row in the comments section of the Silicon Federation post on this, where one of Melissa Doyle’s assistants insists she is a journalist. If chatting about the events of the day is journalism, we’re certainly all journalists now online and off.

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16 responses

19 02 2009
Kimota

Well said. There has been a lot of tangential fluffery on this issue as the major players seem to want to avoid talking about he central issue of the legal necessity to preserve a defendants right to a fair trial instead of trial by media and the protection of an individual and his family from victimisation at hate-mongering.

Going on and on about the social media ignorance of David Galbally QC or continually perpetrating the furphy that it is impossible to enforce some controls on the internet are distractions to an issue that isn’t going to go away. Anther high profile case will bring this all back if we don’t take responsibility now for defining how the internet will deal with those who abuse the services to victimise others, knowingly breach court orders or incite violence and hatred.

19 02 2009
jamesduthie

Love. This. Post. Absolutely spot on.

19 02 2009
Gavin Heaton

Great post, Steven. It’s about the right to a fair trial … the rest of the noise is peripheral to what is classified as a human right.

21 02 2009
lpapworth

Actually the discussion is about removing anything other than the name and state of a named suspect.
I think “Citizen Journalism” is a furphy. A woman who is abused by a relative, may join a support forums in her teens. Finally in her twenties, the case goes to court and anything – including her discussions on forums – that may reveal the suspect must be removed? What about family fotos? She can no longer discuss online in a peer to peer support forum her case. This isn’t mirroring human behaviour. And she isn’t sensationalizing a case as a blogger or a journo would.
A young man at 17 is allowed to drive the family car, has an accident and wipes out the family. The court can’t suppress his details, even though he’s underage because he or a member of the family have too much up on line. In fact I know this case. Every time you Google his name, the fact he killed his father in a car accident comes top of the search – pages of it.

This one is a relevant recent one. The court has suppressed the name of an alleged paedophile school teacher – years and years of abuse – but not the school nor his face. How many graduations photos and videos do you think there are on Facebook, YouTube, MySpace, Photobucket, Flickr, Metacafe, Vimeo, personal blogs, MySchoolFriends, FriendsReunited, and so on? I should be a lawyer, I’d get rich enforcing cease and desist orders.

Many of our laws come from ancient history when finding someone a few villages away that had not heard the news was not impossible. In this day and age, I’d rather take my chances with an intelligent jury that HAD heard of the case but could be seen to be impartial. Finding a “news” virgin in an always-on world will be impossible.

Bandying around “fair trial” without looking at in context of today’s needs is at best naive “this is the way we’ve always done it” and at worst … well, you tell me. Do you think that finding someone who hasn’t heard of the bushfires or the alleged arsonist is really that critical to a far trial? And where are these people in Australia – the ones that are so disconnected from a national tragedy?

It sometimes pays to look a little deeper than “all people online are journalists and therefore should follow old media laws”.

21 02 2009
Kimota

Laurel, you do like to stretch a point. 🙂

Finding a juror that hasn’t heard of the bushfires or the fact it was arson has absolutely no relevance whatsoever. The scale or widespread knowledge of the bushfires doesn’t affect the trial one way or another. The only way this would have a bearing – and this has nothing to do with reportage – is during jury selection, those who were directly impacted by losing property or family members or knowing some one who did, would be excused. A person from Churchill won’t be on the jury, but that still leaves a few million people. What does have a bearing on the fair trial is people online assuming his guilt and painting pictures of his character before he is tried.

The paedophile suspect you mention is a case in point – they suppressed his name. This makes it infinitely harder for the general gossiping community to discover who it is or which photo depicts him because no one knows which one he is! Sure the school is mentioned – but that is not enough to identify someone or help someone track down a defendants family to hurl abuse. Those who may know the case or the defendant aren’t able to short-circuit this by revealing the name – “I know which one it is” – because it would be illegal to do so. I think this is how we’ll see the courts deal with this stuff going forward.

Citizen journalism is certainly one aspect of this whole case. People writing and commenting on news events in their blogs cannot be characterised as anything other than journalism. The other side is the social media gossip angle – a tweet or sharing a photo on Facebook is not journalism in the same way but is equally damaging.

As for following old media laws – I don’t think the guide lines around what constitutes ‘publication’ is going to change any time soon. Otherwise, you would be allowing for the legalisation of defamation online, the legalisation of threatening or abusive behaviour online, the legalisation of plagiarism online and a whole heap of other laws that are essential to our society. Once legalised online, they would eventually have to be legalised offline. Hopefully, you aren’t advocating that anyone should be able to say anything about anyone else, regardless of truth or the damage it may cause to business, to reputations, to relationship. Unless you are happy with a world where someone can quite happily start writing articles, online or i newspapers, that continually reveal you to be a child murderer and a corrupt con-artist who no business should ever trust, and providing you no recourse to redress this imbalance or remove the lies, you have to maintain the definition of ‘publication’ to include anything placed online.

I don’t think it is us who aren’t looking deep enough into this case.

21 02 2009
lpapworth

“This makes it infinitely harder for the general gossiping community to discover who it is or which photo depicts him because no one knows which one he is!” They published his school, and a foto of him outside the court. I recommend you Google (Images) the school name and “class fotos”. Should take oh, about 3 seconds to find out that which is infinitely hard – his name.
A fundamental aspect of social media is that what governs “publication” has changed infinitely and for all time. And I think the laws for offline must also change. We can no more enforce discussions online than we can in the pub, supermarket or footy. Whether you like that fact or not…

21 02 2009
Kimota

Ah – so you do advocate the legalisation of defamation, hate-mongering, incitement to riot etc. Interesting. Because the definition of publication and/or broadcast in law is essential to defining what constitutes each of these.

Just because the community has found a new way to communicate does not mean we dismantle our laws and society. It was precisely because of these aspects of human nature – the desire to go on witch-hunts or exact revenge through murder or to defame someone you don’t like – that the laws were created in the first place. Laws are not about allowing flexibility for people to do what they want, how they want, but to restrict activities inline with socially agreed norms. (You can see my media law training kicking in now… 🙂 ) Derailing a major trial, victimisation, and mob rule is not and never will be a socially agreed norm.

But ‘publication’ and ‘broadcast’ have nothing to do with conversations in the pub or at the footy.

You can complain about me to your friends this afternoon at a BBQ with no fear of the law. You can even say that you think I’m really a fraud or a con-artist or is secretly a cross-dresser who murders cats of an evening. No problem. Actually, it would constitute slander, but I would need to be aware of it and show how it has the potential to damage me. So, technically, even in your pub scenario there is a law to cover it but it is usually so negligible (what can two people thinking the arsonist is guilty do if they aren’t on the jury?) it isn’t worth bothering with.

Print it in a newspaper, mention it on Sunrise or tweet it on the web, though, and you’ve legally published it, committed defamation and I’ll see you in court. That’s how and why it works the way it does. Surely the difference is obvious to anyone.

21 02 2009
lpapworth

It might be helpful to stop thinking in terms of “media” and “broadcast” and start thinking in terms of “social” and “relationships”.
Twitter search on “I was abused”
http://search.twitter.com/search?q=%22i+was+abused%22

revealing no?
No hate mongering, just people sharing the fact that they have been abused – one guy by his ex girlfriend. Make sure you sue ’em all – Rule of Law and all that. No individual cases can be exempted.

21 02 2009
Kimota

Ummm, not up to me to sue them, but the individual accused in each case could very easily sue if he/she is able to prove the statement is defamatory. Whether they do or not is up to them and obviously the individual circumstances (ie; is it true or not). Also, many of the comments you cite may refer to accused who have already been tried and convicted. Absolutely no issue with saying “I was abused by Uncle Terry” if Terry is now serving time for it. Also, note that people don’t use names. No direct accusation is made against a specific individual. Sure, someone can work it out if someone only has one uncle or one ex capable of the deed – in which case they may well be guilty of defamation if the case hasn’t been to court.

So, no. It isn’t revealing at all and does nothing to support your argument. Pointing out instances where people may have actually committed an offence on Twitter (then again, may not – depending on the individual circumstances) and then saying the law should change is like me pointing to the mugger on the corner and saying “people are going to keep doing it so the law should change”.

“Social” and “relationships” have absolutely nothing to do with the definition of publication or the law in these circumstances in just the same way as a relationship between two people has no bearing if one then commits an offence against another.

Anyway, mum’s birthday present to buy, so I’m offline for a while. Next time we meet – hopefully Ad:Tech, the first drink’s on me.

21 02 2009
lpapworth

You betcha the drinks on you. 😛

I have real examples of people who discussed something online in great detail and then said “I can’t talk about it anymore, it’s going to court” yet it’s all there in the long tail. Sooner or later we reveal our real names, if you know the network, Jonathan. ;P

As you like Wikipedia, look up “Law”. It’s a social negotiator – for common behaviour. If everyone was a mugger, then yes, we’d change the law. Stupid example by the way. Better off to point out other laws that have changed, to fit majority behaviour. The look up “Rule of Law” – the law cannot benefit an individual but society as a whole. A society that already discusses cases in social settings and extends those social settings to online.

What are you buying your mum? Please don’t say “flowers, chockies and/or perfume” 😛

21 02 2009
Kimota

Agh – it’ll be nothing at this rate… snigger… But as if I’d stoop to chocolates. 😉 #1 son has to exceed expectations you know.

Anyway, I’ll be brief but I’m thinking, as I know some others are, that this debate is really worthy of some proper forum. Maybe at an event or as Daniel Oyston suggested to me, an in person debate filmed for the web. We aren’t going to solve this one today or this week and probably not this month, but it can’t fade away either.

Anyway, brief answer… The maintenance of the concept of fair trial benefits society as a whole, not the individual. The extention of social settings to online is no different to extending social settings to an op-ed piece in the newspaper or grabbing the mike in the middle of the football stadium. There is a difference, it is enshrined in law, there isn’t a reason to change it because the potential damage is definitely there as in the other cases and society has always loved gossip but that never prevented the development of particular laws to curb abuses of that.

Please, please let me go now… 🙂 I’ll return tomorrow…

21 02 2009
Steven Lewis

I’m with Kimota on this so ditto to all he says.

To give the debate another direction, I’d focus on what we agree on: the internet makes it easier for potentially prejudicial information to be widely known or for lynch mobs to be formed.

Laurel, do you think it doesn’t matter that a jury might be prejudiced? If you do think, as has previously be thought, that it matters plenty, what can be done in the new age?

And to pick up on a couple of your points:

The law isn’t purely to set up how the majority wants to work. Firstly, that would allow for discrimination, tyranny of the majority and so on. Secondly, the law is set up for our better angels: perhaps the majority of us wouldn’t want vengeance if something terrible happened to us or our loved ones but we have laws instead.

21 02 2009
lpapworth

I’m intrigued by the notion of “prejudiced” jury. What if we hadn’t taken that path? What if we had decided to give jurors 6 months education in the issues involved so they could make an educated conclusions? My personal opinion? – the ’empty vessel’ juror is a myth. Or at least, an increasingly unattainable perfect ideal. Maybe back centuries ago when you could travel a couple of villages and find someone. In today’s hyper connected world, I can find out anything about anyone. I also take exception with the law insisting we only address what they put before us. So the paedophile register is published on MySpace but the court is not allowed to mention previous allegations, etc. It just seems so … outdated? irrelevant? not conforming to society?

Secondly, who decides that society is wrong? Seriously – Aristotle may have come up with Rule of Law, but Plato asked “who watches the guardians?” You know as well as I do that there is no hard and fast right and wrong -society decides. Ancient Greek lawyers worshipped beautiful under age boys. Sharia law in Islam insists on rules around women that we in Australia would not accept, in fact, religious law informs social law. And as hard as it is for Australians to accept, we have some laws that will look positively feudal in a few years. (Fathers who can’t see their kids but have to pay outrageous child support springs to mind).

Any time that the law tries to change human nature it’s the wrong law. Or at least, it’s got it’s work cut out for them. And with every single person in Australia a broadcaster, our concepts of “private” and “public” are/will change dramatically. There are no “citizen journalists” there are only people chatting about what they always chat about. They just happen to be doing it whereever they feel safe online.

I’m being drawn into other arguments – the Sunrise show and my subsequent blog post were about Facebook and other services being turned off in Victoria during major court cases to stop dissemination and distribution of information. Not about hate mongering or protecting the children (though they are the two that always get thrown in).

Darn, I said on my blog that I would retire gracefully from this debate. *signing off*

21 02 2009
jamesduthie

Great debate. I have to side with Jonathon though. There’s no doubt different behavioural norms have emerged within online environments/networks. But that doesn’t mean that the perpetrators on these behaviours are above the law.

1 03 2009
Dnosauria » “I am not a lawyer, but …”:

[…] so I’m glad to see it being picked up by others following on from the Sunrise spot. Steven Lewis’ post and the comments on it are all worth […]

27 09 2013
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