Speak high, speak low

Jacob Rowbottom (late of Cambridge, now of Oxford) has written a fascinating article on ‘low level digital speech’.  It will appear soon in the Cambridge Law Journal, but a draft is available on SSRN, under the catchy title of To Rant, Vent and Converse: Protecting Low Level Digital Speech.  It’s a great read – and a very timely intervention in the debate on Internet regulation.  This post is my personal summary of some key points along with some responses – for the author’s own introduction to the topic, see his post at the Inforrm blog.

The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so.  For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed .  [On libel – the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts.  Actually, I’m optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]

From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech.  This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech.  Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 ‘third person effect’ work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more.  There’s also an intriguing argument about freedom of thought here, which I’m still chewing on.  My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.

One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only.  We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them.  On that, the statute book doesn’t fare very well.  The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.

I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003.  Rowbottom is rightly critical of its use as a catch-all offence (p 8) and, more broadly, of selective prosecution (p 9).  One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls).  It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed.  There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.

There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry.  The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it.  Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.

What will this article achieve?  I’d suggest a couple of things.  In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet.  In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13.  Indeed, the framework of high/low value could be capable of application in a variety of other contexts.

For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day).  The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I’ll be blogging about very soon, as I’ve just received my copy of his new book].

(FYI, the source (ish) of the title of this post).


Feed Me

Many years ago, in the days of dial-up, I used to use software like PointCast (remember it?) to download newspaper stories for offline reading.  This was about 12-13 years ago, certainly before the widespread availability of RSS.  And soon after RSS came on the scene, I was subscribing to various feeds, briefly through browser/email addons but swiftly moved to Google Reader.  However, a few weeks ago, I went back to the future, with NetNewsWire for the Mac (albeit synchronised with Google Reader).  I don’t always have my laptop with me – but I’ve tried to get into the habit of going through a lot of subscriptions at once, rather than checking on a very frequent basis (not that I have time for that some weeks anyway) – and anyway the synchronising keeps things fairly well integrated.

All this is by way of an introduction to a handful of recommendations – mostly blogs that I haven’t mentioned before, or are new to me or to the Web.  I subscribe to a lot of feeds – probably too many – although not all are related to the interests of this blog and the accompanying Twitter feed (see, I’ve mentioned T*****r in three consecutive posts!).  I also subscribe to various general and public law blogs, and to other blogs that have little or nothing to do with my day job (mostly books, music and baseball – a heady mix).  The blogroll on this site is out of date, and I don’t plan on integrating my feeds into this site, but I will share some suggestions.  I should also highlight the useful aggregation of all media-related blog posts and news stories from the Guardian, found at http://www.guardian.co.uk/media/rss.  Links below are to homepages rather than RSS feeds.

At last…the 1709 copyright blog.  A spinoff of the prolific IPKat blog, but dealing with copyright in much more detail.

Panopticon.  This blog is about ‘information law’ – mostly data protection and FOI.  It’s written by barristers at 11 King’s Bench Walk (11KBW).

Internet Co-Regulation.  Another spinoff – this time, Chris Marsden’s documentation of his next book on this very topic.

The Symbiotic Web Blog.  This is presented by Paul Bernal – PhD candidate at LSE, who I met at BILETA in March 2010.  He’s only getting started in the blogging world, but his posts about privacy in particular are very interesting.

GamePolitics News.  Actually a lot of law here too, and links to related academic work.  Very frequent (so I tend to skim and look for particular stories), but if you’re doing work in this area, it’s a great jumping-off point.

BBC College of Journalism Blog. Some of this is primarily of interest to an internal BBC audience, but journalism students in particular will appreciate it.

Grant Goddard.  A blog about the radio industry in the UK, with lots of unique content based on ratings and Ofcom materials.  Tends to have a post or two a week, but with a lot of detail.

And finally, as I mentioned it earlier…Inforrm – the International Forum for Responsible Media.  Very quickly, a big player in the world of media law blogs.  Has a particular strength in providing access to documents not otherwise available, and also publishes regular roundups of everything that’s going on in the UK and elsewhere.  I’ll say more about Inforrm in a post about libel law reform in the near future…

Prof. Facebook, revisited

More on the question of university lecturers and Facebook (which I blogged about here), from the Houston Chronicle just before Christmas:

Should teachers become virtual “friends” with their students? Opinions are mixed. Opponents fear innocent educators will be branded sexual predators for chatting with students online, while proponents caution against overreacting to a powerful communication tool.

It starts off a bit sensationalist, but gets better, with some interesting contributions. Get the article here. I also recently rediscovered, from the New York Times (March 2008), The Professor As Open Book, which deals with some of the themes mentioned in my original post.

Letting It All Hang Out

As previewed here, a report on this morning’s privacy-and-the-Web jamboree. Lawyer Caroline Campbell introduced the symposium on “Letting it all hang out”, sponsored by Digital Media Forum and taking place as part of the Darklight festival, and handed things over to Prof. Daniel Solove (website), the special guest. (And I discovered that it’s pronounced So-Love, whereas I’ve always said it So-Low-Vay in my head. Oops).

Unless otherwise indicated, what follows is a non-verbatim approximation of what was said. Please correct any errors if you spoke and spot them. Things in [square brackets] are entirely my own views or additions and weren’t said at the symposium. Prior posts on privacy on this blog are here.

Daniel Solove’s presentation

Solove gave a quick overview of the context of Internet privacy, and discussed a number of specific cases that illustrated the changing nature of privacy:

  • Dog Poop Girl – a cellphone picture of a dog doing what dogs do on train, published, the owner identified (as being irresponsible for not cleaning up), personal info published; it ended up on BoingBoing, media, posters and much more. “The Internet allows a cyber-posse to amass from around the world in an instant”.
  • Personal blogging is in a way like diaries, containing intimate details of your personal life – but also the lives of others! But it’s very pervasive…will parents say to their child: “Well yes we could read your blog .. or you could just tell us about your school day“? (Solove displayed this cartoon or a version of it)
  • 40% of blogs are written by under 19s…this is ‘Generation Google’, entire lives chronicled online [lots of things in common with Digital Natives here]
  • Star Wars Kid – put up on site by friends and in just a few weeks, millions of views, went viral, embellished by others, mashups (loads of ’em). Now he’s extremely well-known. Is this a good thing?
  • Washingtonienne (Jessica Cutler) – anonymous blog which was personal, including lots of stuff about sexual partners – highlighted by Wonkette, followed by significant magazine coverage, a book deal, etc. One partner sued her for invasion of privacy … though she has now declared bankruptcy.

But maybe this sort of scrutiny of reputation is a good thing? Yes, but information out of context leads to hasty judgements that don’t really capture the truth of a character. And the libertarian norms which are generally good can actually lead to the opposite, people can be “shackled to their past”.

What can the law do? A little bit, but not a lot. A solution must deal with education, social attitudes, etc. So he analyses three “paths” – libertarian (hands off – things will get worse if you bring the law in; problem is that the norms may not develop the way we want to), authoritarian (censor and restrict – increasing willingness to do this in the US, too reactive, chills speech), middle ground (threat of lawsuit forces responsibility and accountability -recommended approach, but doesn’t want too many cases as it’s expensive) [again, this is a trend in the current phase of cyberlaw, so Solove is in very good company]

He then discussed the ‘Warren and Brandeis‘ privacy tort in the US, where you can sue for spreading private information not of legitimate concern. In the UK, it’s the modified breach of confidence tort, expanded post-HRA to be similar to US. [In Ireland, we have neither as such (breach of confidence exists but not as it now does in the UK), although we do have a small number of cases where a suit for breach of the constitutional right of privacy has been successful, a proposed tort in the stalled Privacy Bill, and a presumptive requirement under international law (ECHR) and domestic remedy (ECHR Act) to deal with the Von Hannover approach to Article 8 of the Convention on privacy]

Often, we have a binary understanding of privacy – places are private (home) vs public (the county fair). But we do have expectations of privacy in public place, and it’s so easy to capture (cellphone, CCTV, etc). The breach of confidence remedy in the UK is extensive and includes information between friends.

It’s also about control. Dr Laura Schlessinger, a conservative commentator, was not impressed when nude photos of her (taken in her wild past) were circulated. [I’m passing on looking them up] She sued the website to get the photos taken down, but lost due to free speech concerns. Then the ‘voyeur’ website that published them won cases against other sites for stealing their pictures! This shows that the idea that there’s nothing that the law can do to restrict information is false – in this case, there was copyright protection. “If you have a choice between copyright and privacy, choose copyright”, as the protections are more powerful.

And then there’s speech. Solove thinks that US law overprotects speech and underprotects privacy. Section 230 of the CDA immunises websites, ISPs etc for content supplied by others…and it’s complete immunity, which goes way too far. Juicycampus.com is an example. This illustrates how the law is “getting the balance wrong, encouraging irresponsibility rather than responsibility”. Small legal changes would nudge norms in the right direction.

Panel Discussion

Caroline (CarC) and Daniel (DS) were joined by Damien Mulley (DM), Jim Carroll (JC), Cormac Callinan (CorC) and Niall Larkin (NL). I didn’t get every point, I’m afraid, but I’ve tried to capture as much as I could (in almost all cases, summary rather than verbatim). ?? means a question or point from the floor.

We started with a general question to the panel on social networking and privacy. NL: People are sharing, learning to express themselves, “growing up online”. If it goes on the Internet, it stays on the Internet. DM: everything you do on Facebook is logged, i.e profile visits. They got in trouble last year, because even when you closed an account, info was still stored. Profile built up to sell on to advertisers, understanding behaviour. And they will hand to law enforcement without subpoenas. (full-time members of staff just doing this). There’s also profiling by companies etc, though people don’t really know this is happening. JC: it’s already happening with loyalty cards, though it’s now easier again for the marketers. It comes down to how much you care about it. DS: ubiquity of information collection. Mentions cloud computing – they have all your documents. Popular for marketers and for governments. Analysis tools are getting more sophisticated too. Terrorist profiling too (it works for Amazon, will it work for government?)

DM asks the audience – do you care that your data is being stored and used? [I think about half put their hands up]

??: a debt collector friend has been told to use Bebo in their work. This is a sign of how much awareness there is of the potential of such sites for data collection.

??: what about problems of international law, when content is hosted in a different country? Corc: it’s very difficult, there’s lots of international cooperation, there’s most in child protection, but data protection as an example of where it doesn’t work, there’s virtually no protection in US, despite safe harbour (between EU and US) which controls only certain aspects and is very limited.

??: is there ‘decentralised responsibility’, i.e. the user has agreed to terms and conditions when they signed up? DS: how many people read the privacy policies? They can change them unilaterally at any time. And for Facebook, there’s a policy, there’s privacy settings, and a 6000-word TOS. “No-one reads these things”.

??: Creative Commons has simplified IP contracting, could you do this for privacy? DS: sceptical, you use so many sites in a day and it’s very difficult to keep up with. A FTC commissioner he met confessed to not reading Facebook’s privacy policy. CarC: lawyers work very hard to make things “simple” but they are often hiding stuff! NL: as danah boyd says, as a citizen of the Internet you should have some basic rights.

??: There’s a naivety that people think social networking sites are there for their benefit, but they are ultimately commercial enterprises. DS: people are fine with it until something bad happens. They can want certain uses of data but not others….how do you know in advance? JC: when it’s taken out of context, there is trouble: i.e. publication of Bebo photographs in a newspaper. CorC: yes, but there’s also a lot of misunderstanding, i.e. ‘if you turn off your phone you can’t be tracked’ (not true – it’s effectively personal GPS), even possible to have remote activation of microphone. If someone had said 10 years ago that you’d carry a GPS tracker you’d say they were insane but now you pay €35 a month for the pleasure! DS: there was a backlash against bank accounts in the US in the early days of banking – but people chose to give up some privacy in return for value. But when does data mining turn into surveillance?

??: What can we get our government to do to protect against privacy infringement? And teenagers liked the idea of the mobile phone tracking – is this another generation gap? CorC: mentioned “phonewalking” services (bringing the tracked phone to where you ‘should’ be – big business of the future! Copyright law is very effective because of lobbying power; businesses of course are there to make money, you should always assume this, and also – distinguish between privacy and data protection. Asking Bebo and Facebook to protect you is not feasible, it’s not their job to do it as they can always see and know everything, and their motive is profit. DM – I want to be told when people access my information, i.e. what the companies or their allies do, and including government information too (e.g. social welfare).

DS – there is an “optimism bias”. And it’s hard to visualise all the people reading your blog as compared to that of an true audience. In one study, 70% of people agreed that a privacy policy means no 3rd party sharing (this is not). NL: visualisation is concealed in some (social networks encourage to share with ‘friends’) but not others like YouTube (‘broadcast yourself’ makes it very clear)

?? – Big Brother is important but we are also contributing to this – “we are BB”. Balance between rights and responsibilities – i.e. as a blogger, what am I putting out there?

?? – what about Gmail turning information over to Government without telling you. The government that would legislate to protect us has a particular role too as being a threat to privacy. DS: yes, an see in particular the discussion of FISA in the US.

?? is there a catch 22, you need unique ID of some sort in order to make Internet services and presence work. I like my anonymity, which is compromised. And these issues are nothing compared to Yahoo turning over information to China. CorC – you don’t really have anonymity, Irish ISPs share your information across the world. And you leave a significant footprint. [Cormac was very honest and direct in these contributions, which is appreciated].

??: there are two separate privacy debates happening, one about the protection of public figures against ‘media intrusion’ that is happening in the political and legal arena and a separate one that we are hearing here about privacy policies, commercial exploitation, Government surveillance that is not being legislated for. [That was me]

?? can there be a realistic remedy, very hard to deal with violations as not everyone can go to the High Court.

CorC – remember in Europe we don’t have immunisation of ISPs and hosts as with the CDA in the US (it’s about knowledge). DS: that’s interesting, when I say that in the US I’m told that it would lead to the total shutdown of the Internet and no free speech.


Three quick observations. If you were there, please add your own, including issues that you might not have had time to raise in the Q&A.

A very interesting symposium, with a particular need to note the strength of contributions from the floor. Although I wondered (like Justin) about how it related to the festival as a whole, I think the fact that the vast majority of those present were ‘active’ in various types of media, digital culture, etc meant that there was a lot that did not need to be reiterated (I’ve given talks about Facebook where the basic concept has to be explained, which while important, leads to a different type of question), and also a very informed line of questioning to what was an extremely heavy-hitting panel, with some of the best-known local bloggers and journalists, a leading international privacy scholar, and two important practitioner perspectives from Callinan and Campbell).

I hadn’t heard Daniel Solove speak before, though I’ve read his books and cited his blog posts in papers. He explained the issues very clearly to what was clearly not a legal audience, but managed to do so without leaving out crucial details like US-Europe differences in the relevant areas of law. And he talked about Warren and Brandeis at 10am in a basement full of film producers, and everyone followed what he was on about.

An audience member did raise the issue of gender balance, although in defence of the organisers, both Rachel O’Connell (Bebo) and Karlin Lillington (Irish Times) were invited but unable to attend.

Upcoming Blawg Review

Regular readers and casual visitors alike might be interested in this – I’ll be hosting the wonderful Blawg Review next Monday (17th March – you can guess why!). The Blawg Review covers blogs about law, and all submissions are welcome, but blogs/posts with a specific connection with Ireland or topics that one would associate with this fair island (try not to have them all about alcohol, mmmkay?), would be particularly useful. My Blawg Review #128 of last October was great fun to put together, and I’m hoping for loads of interesting submission for the second attempt.

To submit a post of your own, or an interesting post that you’ve seen, please follow the submission guidelines here. Follow the link and use the online submission or email the specified address and I’ll receive it immediately.