cybersoc.com

french website found guilty of breach of privacy - for providing a link

Last week a French court ruled that providing a link is enough to make a website responsible for the content linked to, even when that content was created by and exists on a third party website. The ruling could have serious consequences, not just for bloggers and message board users, but for any website that provides links, including news websites, online directories and even search engines such as google. Yahoo News Reports:

A Paris court ruled on Thursday that a user-generated website had violated a film star's privacy by hosting a link to a report about him, in a potentially landmark ruling for the French Internet.

The court ruled that fuzz.fr made an "editorial" decision to link to a story on a gossip news site about French actor Olivier Martinez and his relationship with singer Kylie Minogue -- and was therefore responsible for its content.

The fuzz.fr website -- taken offline following the lawsuit -- allowed users to post links to their favourite stories elsewhere on the web, with the most popular ones automatically displayed at the top spot.

Its creator Eric Dupin was ordered to pay 1,000 euros (1,600 dollars) in damages to Martinez and 1,500 euros in legal costs.

Dupin said the decision was a blow to other user-generated websites.

"It's a black day for French participatory websites, because it opens the door to all kinds of (court) procedures," he said... [more]

dallas morning news asks readers to sift lost jfk assassination docs

Dallas County District Attorney Craig Watkins recently made public documents and relics relating to the assassination of US President John F. Kennedy.

The existence of the materials, stored in a 6ft x 6ft safe, had been kept secret until now.

The Dallas Morning News has put the documents online and is asking readers to help sift through the content which they say includes "transcripts, personal and official letters, newspaper clippings, lists of jurors, police reports, rap sheets, autopsy reports, trial notes, police notebooks, photographs and much more."     

The problem, according to the paper, is that the documents are, "...neither cataloged nor indexed, and they are in no apparent order. Given the volume, we haven't been able to review most of the files. That's why were calling on you. Here's your chance to review never-seen-before materials related to the JFK assassination." 

Asking readers to help sift through the massive amount of material released is, of course, a great way to use the audience to help find interesting details that will generate stories. At the moment, it looks like the only way users can do this is to send messages to the paper or post on a discussion board - neither of which really harnesses the full potential of the network.

I think the paper is missing a trick by not creating an editorial framework around how people can help with the project. For example, the paper could ask users to use a social bookmarking tool, such as del.icio.us, to bookmark, tag and share. This way they'd be able to more quickly index the documents, making it easier for those with specialist skills or knowledge to get to the documents where their skills can be put to best use.

Simply putting the materials online, and asking audiences to help sift through them, is a good first step but so much more could be gained by applying the newspaper's editorial skills to creating a framework for participation.

scoble & facebook: nevermind owning the data, share the gains

One of the bigger stories today in the blogosphere is that Robert Scoble has had his facebook account blocked after running a script to scrape the data out of his account so that he could take it, and one assumes use it, elsewhere. This is likely to kick off a flurry of posts about the ownership of data, with most bloggers framing it as an either/or debate. I think it's actually an opportunity to completely rethink the business model that, at present, requires each side - the user and the provider of the service - to give something valuable if they are to also gain.

Mathew Ingram notes that the most interesting part of this particular story isn't what's happened to Scoble, but whether it is users, or facebook, which owns the social graph that one creates when they join and interact with friends using the service. Ingram writes:

"Who does that data belong to? It might have been collected and organized in the way it has because of Facebook’s tools, and he obviously agreed to the terms of use that he has since broken, but there’s no question that the information itself should belong to Scoble (and the rest of us). So what rights should he have when it comes to removing that data from a site like Facebook? And who gets to decide?"

It's an interesting point indeed. At a recent dinner hosted by Yahoo, I suggested that as users of social networking, photo and video sharing, and other social software based services become aware of the value of their data and the (sometimes scary) ways it's being gathered and used by the companies that supply those services, there's almost certain to be a backlash.

Over the past few years, we've seen the death of the vast majority of subscription based online community and social networking services. That model has been replaced by the provision of consumer facing services which are free to the consumer. The most basic of these use banner ads or product placement to target a whole audience or random members within that audience. That model has evolved into one where the better targeted an advertisement can be made, the more advertisers will pay for the opportunity to gain access to those consumers. 

Social networking sites like Facebook can build an incredibly powerful profile of individual users - they know who your friends are, how you know those friends, where you live, who you communicate with, the frequency and patterns of that communication, and more. That data is valuable and, having provided a service for free, facebook, yahoo, google or whoever else is providing the tools and infrastructure is right to think that they should be able to get a return on that investment.

But why not go a step further and make users partners? Google AdSense, Amazon Associates and other similar advertising programmes work because they do exactly that. Every time there advertisement is displayed on a partner website, they get data about who that visitor was and where they came from. The programme also then shares revenue, usually based on click through rates or actual purchases, with the site owners. Make no mistake, just about every blog that makes money, but which is too small to have it's own ad sales team, makes that revenue by displaying Google Ads.

I think now is the right time for Facebook, MySpace, Bebo, Yahoo or some other social media provider to do the same for social networking - let users become partners, help them to willingly increase the value and validity of the data collected about them by giving them a percentage of the revenue that enhanced data generates. The more users voluntarily tell the service, and the more they let their usage behaviour be analysed, the greater their potential take.

So who owns Scoble's Facebook data? The debate is likely to be between those who think Scoble should own his own data whilst those on the other side will argue that, by providing a free service in exchange for data, Facebook and others offering similar services have created the necessary "consideration" aspect of a binding contract and should be allowed to seek for a return on their investment.

But framing the debate as one with two opposing sized misses the real opportunity here - one that benefits consumers, business and advertisers - which is for the answer to the ownership of data question to be both. That is, by giving users control over what data they do and don't allow to be collected about them and how that data is to be used, but encouraging them to provide such data on the grounds that they will then get a percentage of the additional revenue that data generates, social networking sites and users can both benefit from that data. And, so long as that data is used in ways where there is consent in what is gathered, transparency in how it's used, and sharing of it's value, the question of who actually owns it will be much less relevant.

[Note: This is my personal blog. All views expressed in this and other posts here are my own and not those of my employer.]

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]

re-using creative commons licensed content? think twice...

  Dump Your Pen Friend 
  Originally uploaded by sesh00

Creative commons licensing gives content producers control over who uses their work and how.

I use a creative commons license on nearly all the photos I post to flickr and often use photos borrowed from flickr, with the proper attribution (and often with express permission), as the background image on powerpoint slides.

Until now, I've never thought about the people in those photos having any legal rights over the use of their likeness but a case arising from exactly that has been filed in a US District Court.

The New York Times reports that 15 year old student Alison Chang and her family have filed suit against Virgin Mobile Australia in a Federal District Court in Dallas. This isn't a simple case involving the misuse of someone's copyright protected images - it's a privacy case involving the subject of a photo uploaded to flickr with a creative commons license applied to it. The New York Times explains:

"The conduit for this unusual bit of cultural exchange, it quickly emerged, was the Flickr photograph-sharing service, which is owned by Yahoo. The image had been uploaded to the site by the photographer, Justin Ho-Wee Wong, Alison’s church youth counselor...

In another Flickr twist to the Virgin Mobile case, it was a Flickr member from Adelaide, Brenton Cleeland, who first noticed the ad on Churchill Road and, naturally, photographed it to share on Flickr. In the spirit of a site populated with amateur photographers in search of an audience, Mr. Cleeland wanted to spread the news of Mr. Wong’s success. “I wonder if he knows that his photo is being used here,” he wrote in a posting, adding, “Anyway, congratulations!”

Alison, however, was the first to chime in online, and was hardly as pleased: “Hey that’s me! no joke. i think i’m being insulted.”

Chang v. Virgin Mobile USA is not the typical intellectual property rights case. A prolific member of Flickr, Mr. Wong has more than 11,000 photographs there that anyone with the time or inclination could page through. And, until recently, those photographs carried a license from Creative Commons, a nonprofit group seeking alternatives to copyright and license laws. The license he selected allowed them to be used by anyone in any way, including for commercial purposes, as long as Mr. Wong was credited.

Instead, the case hinges on privacy, the right of people not to have their likeness used in an ad without permission. So, while Mr. Wong may have given away his rights as a photographer, he did not, and could not, give away Alison’s rights. In the lawsuit, which Mr. Wong is also a party to, there is an argument that Virgin did not honor all the terms of the nonrestrictive license."

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.]

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

in the guardian twice today

In the Guardian today... twice
Originally uploaded by robinhamman.

Cybersoc.com is in the Guardian Media section twice today. Bobbie Johnson and Conor Clarke's America's first user-generated confession looks at whether the Virginia Tech shootings, and subsequent user-generated confession video, were watershed moments for the press.

In an opinion piece, Guardian feature writer Patrick Barkham and Jeff Jarvis argue over whether reporters, including myself, were right to solicit information from students' web pages.

There's also a good piece on whether journalists can simply lift content (no) from blogs and other content published publicly online and Emily Bell's editorial on the changing roll of journalists in an age of "citizen journalists" almost always beating professionals to the scene of any major story.

french "anti citizen journalism" law & the case for union recognition for bloggers

The French Constitutional Council has, according to the IDG News Service, "approved a law that criminalizes the filming or broadcasting of acts of violence by people other than professional journalists. The law could lead to the imprisonment of eyewitnesses who film acts of police violence, or operators of Web sites publishing the images, one French civil liberties group warned on Tuesday."

Pascal Cohet, spokesperson for the French Civil Liberties group Odebi which has been gathering reports about the law from around the world, points out that under the law, George Holliday, who recorded LA Police beating Rodney King, could have been sentenced to up to 5 years in prison and fined €75,000 (USD $98,537).

The law was proposed by Minister of the Interior and Presidential Candidate Nicolas Sarkozy and was, according to the IDG report, intended to clamp down on a wide range of public order offenses, including "happy slapping". Campaigners, however, worry that the law was intentionally written in such a way that allows broad interpretation that effectively outlaws the efforts of citizen journalists to photograph and film violent acts, including police brutality.

The French Government has also reportedly proposed "a certification system for Web sites, blog hosters, mobile-phone operators and Internet service providers, identifying them as government-approved sources of information if they adhere to certain rules. The journalists' organization Reporters Without Borders, which campaigns for a free press, has warned that such a system could lead to excessive self censorship as organizations worried about losing their certification suppress certain stories."

Nicolas Sarkozy, regular readers of this blog will recall, is the right wing French politician who caused quite a stir by turning up to address Le Web 3 after being invited by Loic Le Meur, one of France's most widely read bloggers who has endorsed Sarkozy's candidacy. Le Meur, a serial entrepreneur, supports Sarkozy in part because he feels that Sarkozy is the candidate most likely to help bring new opportunities to the French software and technology industries by supporting start-ups and venture capital investment in them. Sarkozy has, in the past, also been supportive of journalism.

It's quite difficult to understand why Sarkozy would propose a law that seems to go against both the internet publishing/tech community he's been courting as well as journalists.

Citizen journalists and bloggers can't, of course, ignore the existence of libel law, contempt and other restraints that are placed upon what they can and can't publish online. Indeed, The Press Gazette reported last December that violation of such laws (as well as repression) on the internet accounted for "one in three jailed journalists". It's important that bloggers understand both their rights and their legal responsibilities and there are a growing number of resources, including this one from NewAssignment.net, offering explanations of these.

The good news is that in some places, for example California, courts are beginning to recognise that bloggers and citizen journalists should have the same legal protection as journalists. The bad news is that, in most jurisdictions, such recognition is probably still a long way away.

Existing organisations created by and for bloggers, such as the Media Bloggers Association, tend to be more about cross-promotion and don't get the same respect or recognition from governments that more mainstream journalism bodies receive.

The way forward, if bloggers and citizen journalists want to work together to ensure their recognition and rights, is to begin speaking with existing journalism industry trade bodies and unions, for example the National Union of Journalists (NUJ) in the UK or the Online News Association internationally. Seeing that more and more bloggers are doing journalism, and more and more journalists are becoming bloggers, they may very well be willing to take bloggers on as fully fledged, card carrying members and/or to set up branches specifically for bloggers.

Once onboard with the trade unions, bloggers could join professional journalists, free speech and civil rights campaigners, mainstream media organisations and other interested parties to form a united front in fight against laws like this one in France and elsewhere.

[Update: BBC News Online is now reporting on the proposed French law]

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