cybersoc.com

guardian readers' editor on why some posts don't allow comments

The Guardian's Readers' Editor, Siobhain Butterworth, has written an insightful post explaining why, in some circumstances, posts on Comment is Free don't allow comments from readers. Online community managers will also find some sound advice here.

Butterworth writes,

"Last week... another piece on Cif discussed the relationship between the media and the police in the McCann case and in other criminal investigations - but it was closed for comment.

A short note explained that this was for "legal reasons". Some readers felt this was not so much an explanation as a lofty way of saying either "we're not going to tell you why" or "it's too complicated for you to understand".

Most people, including some journalists and many people who comment on blogs, don't fully understand libel and other laws that restrict what they can and can't say online.

Publishers such as the Guardian choose to moderate the online discussions they host which, some solicitors feel, might actually increase rather than decrease their legal responsibility for the comments they allow to appear on their sites. The law, as Mumsnet recently discovered, is far from certain.

Personally, I think it's irresponsible for a website to offer users the ability to comment and discuss on site without at least offering on demand moderation (via "alert a moderator" links) of that content. I know that Butterworth agrees that the Guardian should take some responsibility for protecting it's users by moderating. Sometimes, however, the risk of allowing comment just becomes too high. Butterworth explains:

"At least 20 pieces involving the McCanns have appeared on Cif since Madeleine McCann went missing in May... Hundreds of comments were posted to a few articles in September, after the Portuguese police named the McCanns as formal suspects, with headache-inducing consequences for the moderators. Discussion threads on four pieces were closed, or closed early. The Guardian's talk policy does not allow defamatory postings and the problem was that many of the deleted comments were no more than strong opinions weakly held - they had no basis in fact."

If the defendant in a libel suit can prove that their comment is based upon an opinion honestly held, based upon fact and given without malice, for example a negative book review, then they will usually, although not always, be successful in using this defense. But determining what is and isn't honestly held opinion, what is factually true, and whether a comment has been posted with or without malice is a tricky business. Butterworth says,

"The moderators are not lawyers, or fact-checkers. They cannot give reasons to every user whose comments are deleted, though they try to do so when time permits. To put their task in perspective, on one Friday in September, more than 3,800 comments were posted on the Guardian website. The volume means that the moderators' approach to enforcing the talk policy has to be broad brush. The McCann postings stretched the moderating resources too far, the moderators told me. They were concerned about the number of postings they were deleting and they were aware that people were frustrated. All things considered, a decision was made to close threads down. Roughly 1 in 5 of the postings to one piece were deleted and the decision to stop the discussion there was understandable, but I'm not persuaded that it was justified in the other cases..."

Butterworth goes on to explain that, where difficult subjects are raised by a post, users should be warned in advance that the rules are likely to be strictly enforced and, of this advice is ignored, the discussion can and will be shut down. Anything else - that is, not allowing comments on a post just because people might break the rules of discussion rather than because people have broken them "puts the punishment before the crime."

[Read Siobhain Butterworth's Full Post]

my interview about internet libel on 5 live

The UK blogosphere continues to buzz about last week's incident involving an Uzbek billionaire requesting that an ISP remove content which he felt was defamatory.

Lastnight, I spoke about UK libel law and how it relates to content originators and hosts in an interview on BBC Radio 5 Live's Pods and Blogs.

The interview is available as part of this week's Pods and Blogs podcast.

threat of libel suit sends uk blogs tumbling down

A number of UK bloggers, including the Tory London Mayoral Candidate Boris Johnson, had their blogs taken down by their ISP Friday following threats of legal action by Uzbek billionaire and major Arsenal shareholder Alisher Usmanov.

The bloggers, who were unlikely to have previously heard of or mentioned Mr. Usmanov, were unwittingly caught up in a dispute between Mr. Usmanov and blogger Craig Murray, a former British Ambassador to Uzbekistan.

London law firm Schillings, which represented actress Keira Knightley in another recent high profile libel case, complained to Fasthosts, a UK based ISP, about the content of the blog of Craig Murray, a former British Ambassador to Uzebekistan, the home country of Usmanov.

Under the Electronic Commerce (EC Directive) Regulations 2002, an ISP threatened with a libel suit can claim to have acted as a "mere conduit" so long as they:

• did not initiate the transmission;
• did not select the receiver of the transmission; and
• did not select or modify the information in the transmission

However, under the Act, an ISP could lose this defense if made aware of the presence of potentially libelous content.

In taking down Craig Murray's blog in response to legal threats, Fasthosts also took down a number of unrelated sites that, apparently, had been sharing the same hosting account. Blogs affected include that of Boris Johnson, Sandwell Labour Councillor Bob Piper, Tim Ireland's Bloggerheads and others.

I response, Hundreds of UK bloggers have now rallied round and added buttons showing their support for free speech rights.

Many content creators and hosts in the UK would argue that here it's far too easy to get an ISP to remove content rather than face the potential of a long and costly libel defense. In the USA, ISPs and those who host content on them are better protected from spurious takedown notices by the US Communications Decency Act which basically makes content hosts immune from suits arriving from the content that passes through their servers.

It's easy to understand the action taken by Fasthosts although it does seem like a bit of careful pruning, rather than the machete wielding that appears to have taken place, would have gone over better with bloggers.

And it's easy to understand the upset of bloggers who, like Craig Murray, have been silenced by take down requests made directly to their ISPs.

What is difficult to understand is why UK law hasn't evolved to the point where content producers, authors and bloggers are held directly responsible for their words - and those who host those words, whether it be a website, blog or post on a message board, can do so with immunity until which time the content has been shown by the courts to break the law or infringe upon someone's rights.

Anything less puts content hosts in the uncomfortable position of having to make extra-judicial decisions about what content is and isn't a breach of the law; decisions which, in many instances, will pit the responsibility of the ISP's decision makers to maintain corporate economic security against the rights of individuals to express themselves freely.

[Please Note: Although I hold a law degree and am currently a Non-Residential Fellow of Stanford University's CyberLaw Department, I am not qualified to provide legal advice. Please seek the advice of a legal professional before acting on anything you might have read here or elsewhere. I've written this post without knowing or, indeed, caring about the content or accuracy of the complained about blog posts.]

[Disclosure: Tim Ireland, one of the bloggers affected, was one of a dozen people I invited to give a presentation at the We Media Fringe event I organised in early 2006 and was subsequently hired to give a presentation at the BBC following my recommendation. Earlier today I was interviewed about this story by Chris Vallance for BBC Radio 5 Live's Pods and Blogs. Bob Piper, mentioned in this post, and another blogger who goes by the name of Mr. Eugenides also took part in the same interview by phone.]

2nd european corporate blogging summit (london)

I'm at the 2nd European Corporate Blogging Summit where I kicked things off earlier with some opening remarks. As usual, I've uploaded my slides and my notes (Download bfiblogconnotescybersoc.rtf).

Andrew Piper from IBM's WebSphere Solutions team is now enthusiastically speaking about how IBM is using social software and blogging, something he says has been driven by needs within the organisation:

"It's a massive company... we have new people coming in all the time and it's difficult for them to know where to start"

So, in Nov 2003, IBM started a blog directory for internal blogs and integrated with the worldwide employee directory and intranet security. Now there are 35,000 users and 10,000 blogs. The benefits are better and more effective communication:

"Rather than me sending out an email to my team... we could just have a team blog that updates what's happening where people are... as I sit in a meeting I can use our internal twitter tool to tell people what's happening, up to the minute... I can save and tag something using our internal bookmarking tool to make it available to others on my team..."

Like many companies, IBM started thinking about their staff blogging outside the firewall and, in 2005, published their corporate blogging guidelines. Andy feels that, far from discouraging staff from blogging publicly, the guidelines help to encourage IBM staff to blog outside the firewall.

"... industry analysts come to my blog... they know I'm a techie, not an executive, but they want to come to me, they want to hear what I think... and I'm on flickr and facebook and other social networking sites where (by being there) we're building up a much stronger relationships (with customers) by using these sites... just because anyone can write and stick it up on the wall it isn't necessarily a good thing... you need to engage in the conversations. If people comment on your blog post, you need to be prepared to defend it."

Next up in Dan Cooper from Covington & Burlington LLP... he's going to discuss discussing some of the legal risks with corporate blogging, including:

• commercial disclosure of confidential information
• harm of reputation or goodwill
• vicarious liability for violation of intellectual property rights
• FSA violations (the release of some financial data isn't allowed under finance rules - eg. interim results; acquisition information; etc)
• harassment or other employment issues (corporate responsibility greatly expanded by Majrowski Guy's and St. Thomas NHS Trust) - it's worth noting that if allegations posted on an employee blog, it may constitute notice to employer which would require action
• libel (which I've looked at here at cybersoc.com)
• breaches of privacy rights (no UK case law here relating to blogs, but in US Washingtonienne case)

Cooper acknowledges that none of these are new topics at all, but blogging brings them to a new light and there aren't many cases on this at all.

The biggest blogging related issue facing corporates? Employee blogs. You can't monitor them all so maybe all you can do is set guidelines. Banning blogging probably won't work and, Cooper says, "in both the UK and US there are cases against employers for unfair dismissal" brought by employees who are fired for the content of their personal blogs. So employers need to make it clear, within their employee blogging policies, what the risks are and that violation of the policies could lead to dismissal. It also, Cooper says, makes sense to discuss when blogging can and cannot occur (at work? when?), to require that the employee's blog contains a clear disclaimer of corporate responsibility, and that specific types of content (confidential, financial data, etc) that should never be blogged.

guardian readers' editor on comment moderation & libel liability

Siobhain Butterworth, the Guardian's Readers' Editor, recently posted about the flow of comments into the Guardian and the legal responsibilities which stem from moderating and publishing this content: "It has never been easier to become an author - the web can make instant publishers of us all. There are plenty of places on the Guardian's website where you can say what you think: Comment is Free (CiF) for interaction with comment and analysis, or our talkboards where you can join (or start) discussions with each other... There are at least three good reasons for moderating. First, so that users are not driven away by abusive or offensive postings; second, to make sure that the discussion stays on topic; and third, to avoid legal liability. More than 3m comments have been posted since 2004 - 250,000 of them in the past month. Given the volume it is not surprising that a few postings on some discussion threads have given cause for concern... ...The Guardian is legally responsible for the journalistic material it publishes, but it may also be liable for postings...." The rest of the article considers the legal position of the Guardian when hosting and moderating online discussions and comments authored by their users. Butterworth also reveals that Mumsnet and Childcare Guru Gina Ford have settled their dispute out of court. More internet libel links on my Stanford Cyberlaw blog and more about moderation and moderation suppliers here.

Listen to this article

canadian court: blogging is an occupation, may also be "reporters"

A Canadian court case [R. v. LeBlanc, 2006 NBPC 37 (CanLII)] appears to have created two important legal precedents: that blogging can be an occupation and that bloggers are reporters (and have the same responsibility to follow the law as do professional journalists):

"Mr. LeBlanc was never advised by the police that he would be arrested if he did certain things – He was simply plying his trade, photographing a demonstration for inclusion in his blog when he was arrested...He was simply plying his trade……gathering photographs and information for his blog along side other reporters."

Judge William J. McCarroll, presiding over the case in the Provincial Court of New Brunswick at St. John, explains further in his judgement that these are important distinctions:

"It may well be asked if Mr. LeBlanc’s chosen occupation as a blogger had any bearing on my decision in this case. The answer to that is yes and no. The fact that the defendant was a blogger explained why he was at the Trade and Convention Center taking pictures, while a riot was going on. It could also explain why he was on a first name basis with some of the delegates. It would explain why he was so upset at being arrested, as he obviously considered himself to be a legitimate member of the media who had done nothing wrong."

"Assuming for the purposes of my decision that Mr. LeBlanc was a legitimate member of the media, did this grant him any special exemption from following the directions of the police? The answer to that is clearly no. Provided the police are acting in the execution of their duties and not exceeding their common law powers, Mr. LeBlanc and any other member of a so called mainstream news organization would be obligated to follow the instructions of a police officer, again provided the officer was acting within the scope of his authority. Members of the media are no different from any other citizen in this regard. A legitimate order from a police officer must be followed by every citizen. If I were satisfied beyond a reasonable doubt that Sergeant Parks was acting within his authority and had not exceeded his common law powers when, and if, he ordered the defendant to leave the Trade and Convention Center, the result in this case would have been different."

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free blogging workshop at bbc manchester

The first BBC Manchester Blogging Workshop, part of the BBC Manchester Blog Project, will take place on 6pm on Thursday the 18th of January, 2007. This free two hour workshop is for anyone who wants to learn more about blogging and/or creating and publishing content online.

Topics covered will include:

• finding the right publishing platform - from blogger to typepad, flickr to youtube, myspaceto NowPublic there's a place that's right for you to publish your content online (and often it's free)
• tips on getting started - naming your site or page, getting noticed, getting listed by directories and search sites
• syndicating and sharing your content more widely - making it easier to find new audiences and for them to keep track of you using RSS, email updates, email lists, iTunes (for podcasts), and social bookmarking services like del.icio.us
• techniques for finding and joining in "the conversation" - using RSS, technorati, co.mments and other tools to find and track the buzz you generate
• keeping it going - how to make you efforts financially sustainable with google adsense, amazon associates and other revenue sharing programmes
• We'll also introduce the BBC's editorial guidelines, and provide a quick legal briefing covering libel and other issues, because we want to help you keep out of trouble and to understand what we can, and can't, link to from the BBC Manchester Blog

The workshop will be run by BBC Radio Manchester's Richard Fair who, in addition to covering blogs in his new radio show and posting on the BBC Manchester Blog, has had a number of blogs for years and by Robin Hamman (me!) who heads up the BBC's Blog Network, runs workshops for people authoring or producing BBC blogs, reports for 5 Live's Pods and Blogs, and whose personal blog has recently been listed as one of the top .02% of blogs globally by blog tracking service technorati. We're also hoping to have a number of guest contributors - TBC.

For further details or to sign up visit this post on the BBC Manchester Blog.

claimants go after users, not websites

This week I've spotted two instances of legal claims being filed not against the websites hosting content but against the person(s) actually posting the content. In one instance, a copyright infrindgement claim was made against a blog posting premiership football videos on Youtube and, in the other, against a message board user who, the claim alledges, posted defamatory material on a magazine's message board forum.

According to BBC News Online, "An independent website has been told to stop putting footage of FA Premiership goals on the video website YouTube. NetResult - a firm monitoring the internet on behalf of the Premier League - emailed a warning to the website, 101greatgoals.blogspot.com."

Similarly, the Press Gazette reported on Thursday that:

"A website user is facing legal action over statements he made about a yachting company on a magazine's forum. Craig Powell wrote about Hampshire-based SD Marine under the heading "Re: Honest brokers or back- street cowboys", according to a High Court writ. The comment was published on the IPC Yachting World website, but the writer has no connection to the magazine and IPC is not being sued. An IPC spokeswoman said the comment was posted by a site user "entirely at his own responsibility, subject to the site's terms and conditions". Powell removed the posting himself before the company contacted IPC."

Has the tide turned, with those making claims realising that sites offering community features or enabling users to upload content aren't ultimately responsible for this content? I hope so.

I'm a strong believer that laws in this area should be rewritten to encourage websites to take resonable steps to police content but, so long as they procedures are in place and followed, to ensure that the users who break the rules - and the law - are held responsible for their own actions.

[More on the current state of libel law as it applies to user generated content and online community in the UK.]

some law related news

Regular readers will know that, for the past two years, I've been working on a part-time post-graduate law degree in law at the University of Hertfordshire. Word arrived today that I've now successfully completed the Common Practical Exam which is effectively the post-graduate equivalent of an undergraduate degree in law.

But that's not the end of my good, law related news. I've also recently been invited to be a non-residential fellow at Stanford University's Center for Internet and Society. I'll post more about the fellowship and my specific project, which is a participatory research project looking at citizen journalism, when I've got the details together.

I'll be celebrating with a few spoonfuls of cough syrup since I'm currently a bit under the weather...

links for monday

India's e-tutors give UK children homework help: Call centres charge £50 a month for unlimited individual help to pupils thousands of miles away

Fifth Circuit Affirms Lower Court Dismissal in Defamation Case; Lack of Personal Jurisdiction: In Ouazzani-Chahdi v. Greensboro News & Record, the plaintiff sued a Greensboro, North Carolina, newspaper claiming defamation. The lower court dismissed for lack for personal jurisdiction. The U. S. Fifth Circuit has affirmed.

DIY Media seminar on networked amateur cultural production: Howard Rhiengold and others at Annenburg

The Zidane smoking photo - a cautionary tale about ownership, copyright and licensing.

Can Digg be Democratic? From the Press Gazette...

'Blogosphere' spurs government oversight People go digging for Govt. info

What is the next target for spam? - Digg and Newsvine, the next target for spam?

Follow you, follow me: GPS tracking can be used to stay in touch with friends, or more sinister purposes such as spying on a spouse. Ronan Fitzgerald examines the potential for abuse

Law Professor on Possibility of Craigslist Attack Lawsuit: How liable, if at all, is Jason Fortuny for publishing graphic and personally revealing information sent by men responding to a fake Craigslist ad?

more on my del.icio.us page...