It is 18:11 and my assignments are done. I get one day of rest until the next batch off assignments start to twitch at the corner of my desk. No rest for the weary, so off to the Guardian I went a moment ago only to see an interesting article by James Ball. It is about Twitter. The headline ‘Twitter: from free speech champion to selective censor?‘ pretty much states it all (at http://www.theguardian.com/technology/2014/aug/21/twitter-free-speech-champion-selective-censor).
It starts with a quote that sounds good, but is actually a statement of quicksand “The social network’s decision to remove all links to the horrific footage showing the apparent beheading of the photojournalist James Foley is one that most of its users, reasonably, support“.
I actually do not support it, but I understand the action. Why not?
Well, this is all about emotion, which is fair enough, but Twitter had given themselves a precedent of censoring. Now, let us be honest, I have nothing against the censoring, but they created a position for themselves that will drain resources in many way.
Why? What about the next beheading or execution that comes next? Other video smut we can all do without. Where will it stop and how can it be managed?
James Ball actually words an interesting view I had not considered when he states “the New York Post and New York Daily News’ decision to use graphic stills from the footage as their front-page splashes. Here begin the problems for Twitter: the network decided not to ban or suspend either outlet for sharing the images – despite banning other users for doing the same“, which constitutes discrimination. So, as I stated, Twitter entered a pool of quicksand and it will get them deeper into trouble sooner then they realise. That is shown with the quote “Twitter is absolved of legal responsibility for most of the content of tweets. But by making what is in essence an editorial decision not to host a certain type of content, Twitter is rapidly blurring that line“.
So under Common Law, Twitter got themselves in quicksand and hot water all at the same time (aren’t they the efficient Eager Beavers?).
If I go by the NSW Defamation Act 2005, we see a nice escalation in section 32, where it states:
Section 32 Defence of innocent dissemination
(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person:
(a) was not the first or primary distributor of the matter, and
(b) was not the author or originator of the matter, and
(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
Until now, they had gotten a clean pass and would remain to have one until they made the change they did. Because whomever starts any defamation case, will have cause to show the beheading censoring instance of James Foley and by Twitter acting, they gave away the defence: ‘did not have any capacity to exercise editorial control over the content of the matter‘, because they just did that exact thing, which now gives them cause to see Defence of innocent dissemination melt away like snow in the sunshine.
As James Ball points out, the issue that I had taken offense to last year were the threats against Caroline Criado-Perez, who thought it would be a great idea if Jane Austen became the new face of the 10 pound note. I personally thought it was a brilliant idea. Some small minded people did not and as such, she got a dose of abuse and threats that were completely beyond belief. It is only one of many cases of bullying, trolling and harassment via Twitter. The quote we see in the Guardian is: “Twitter’s strongest, perhaps only, justification for its sluggish and minimal response was that it could only act through its harassment channels, and could not become a curator or editor of content on its site“, which in itself is perfectly acceptable, yet now, they have given that option away by acting and soon, Twitter might be confronted with other abuse and threat victims and as such their goose gets to be decently cooked (and broiled).
So, either Twitter takes a step back, which would be fair enough, or it becomes a policing entity, which might not be the worst, yet the issues from this choice will haunt them for a long time to come. That in itself seems unfair, but just moving to the plate (not arguing how justified it is), will leave them with bruises and scars. I get the issue that it is a consequence of choice, which I do not attack, but how consistent can they actually do this and more important, what issues will they open when they censored something that was lost in translation, how will they fix those mistakes at that point?
I think that they should state that the beheading intervention was a once off and not interfere again. Not because I want it, but because Twitter seems safer by remaining on the side of innocent dissemination, a side that they might not be regarded as ever again (speaking juridical), simply because the action has already taken place.
So is the censor in for censoring?
That is a question that only Twitter can answer, yet the emotional decision to intervene in this case was morally right, emotionally correct and decently good, this jurisprudential mouse will however end up having a slightly too long tail, I wonder whether Twitter considered that option, especially in regards to victims like Caroline Criado-Perez who did not get the intervening attention they rightfully deserved.
Lawrence van Rijn - Law Lord to be 