Edited for: accuracy, adding links, and poor grammar. 19-Feb-09
Just a heads up – for my five regular readers, this is a LONG POST. If you really want to read it, you might want to get a coffee to keep you awake through it.
So. On Tuesday Wednesday (and now we know why I have such a small readership, I can't even keep my days straight), Laurel Papworth (social media guru, @silkcharm on Twitter) appeared on Sunrise (early morning TV show in Australia, for the foreigners) in an interview alongside David Galbally (a QC, who is almost certainly not on Twitter) about this whole crazy Facebook vigilante anti-arsonist thing (just Google ‘bushfire Facebook vigilante’ and you’ll get the idea). Video is in the post linked to from Laurel's name.
Fang put up an interesting post about the situation, which I commented on here and here. Go, make a cup of tea, read the article, watch the video, and then come back.
You’ve read it? Excellent. Now, there are a few things I want to nut out here. First of all, what makes a common carrier a common carrier and why on earth is the notion important to this debate? Second, should Facebook, MySpace, Twitter, blogs and other forms on online communication be considered publication (in breach of the court order), or conversation (not in breach)? And third, if we think that people have been busting open the suppression order and dancing on its bloody corpse, what should we do about it?
A common carrier, according to that bastion of knowledge conglomeration known as Wikipedia, “is a business that transports people, goods, or services and offers its services to the general public under license or authority provided by a regulatory body.” So, Australia Post is a common carrier in that it transports goods. Qantas is a common carrier (as is the charming Adelaide Metro authority) as the transported thing is peeps. Telstra is a common carrier too, although I’m not sure how it falls into that definition: they transport a conversation (service??) from your phone to mine, perhaps. Or in the case of Bigpond, their intertubes arm, an email from my computer to yours.
One thing that common carriers have in common (ha, that’s almost a joke) is that they can’t be held responsible for adverse affects from things they carry. So, if I send a bomb through Australia Post (stupid idea), Australia Post isn’t going to get charged with terrorism. If they opened it up, went “oh hey, look – bomb!” and then forwarded it on anyway, they might get charged with something like “being a complete nong and allowing bombs through the post”. If I send a libellous email to everyone in my address book saying that Peter Costello is really, I don’t know, an alien overlord who is mind-controlling us into being good little sheep (if that were true, then it’s not working too well), then Bigpond (or in my case, Internode) isn’t held responsible for it. Common carriers just move stuff, they don’t know what it is, and they can’t be held responsible.
I found an interesting article here from the Melbourne Uni’s law school, and if you rummage through to the middle of page 82 and into page 83, the author talks about how a telephone company (common carrier) is distinguished from a telegraph company (not a common carrier) because the phone company just provides a service, whereas a telegraph operator is involved in the transmission of the message, meaning that a person can look at it and go “hey, that’s not right!”. A phone company isn’t held liable for dirty calls, but if you get a dirty telegraph you can sue the hell out of Western Union, apparently. An alternative argument is that the telegraph company publishes (publication – it’s that word again!) between operators.
If these providers of internet services (Facebook, Twitter, blogging sites etc) are common carriers, then it’s not their problem when something funky gets put on the web using their services. If they’re not, then hey – shut down Facebook, throw the fail-whale into the clink, and ban all emo blogs (probably not a bad idea, that last one). Which is it, then? Can you say that Facebook is responsible for the content on their site, or are they merely providing a service, the content of which they cannot be held responsible for? My argument would be that you can’t hold an internet provider responsible for content unless that content is moderated, or unless it would be reasonable to expect that content to be moderated, or unless they have been notified that the content is in breach of a law.
For example: I have a blog. You’re reading it right now, in fact. Say that you publish a statement in violation of a court order in the comments to this blog (please don’t, by the way). I get sent a notification each time somebody posts a comment, meaning that (in effect) my comments are moderated: they publish automatically, but I am aware of the content of those comments and I have the ability to go through and delete them.
Let’s say I didn’t get that email: although my comments wouldn’t be systematically moderated, I think it would be fair enough to say that, given the tiny size of my blog, and given my upper limit of about 10 comments on a post (and that’s only when I start a flame war), a reasonable assumption would be that my comment is moderated.
Let’s take this a step further and assume that I’m awesome, you tell all your friends about me, and we start a pyramid scheme of blog readership with me at the top, a sparkling diamond of online twaddle. Suddenly, I’m getting hundreds and hundreds of comments in each article. I don’t think it would be reasonable to assume that I vet each and every one of my comments. However, I get a notice from the cops saying that comment n is in violation of a court order. At this point, I would be taking the comment down and if I weren’t to do so, I believe that I could be held legally (and ethically) liable for it.
Now, let’s scale this up. I make a blog post in breach of a court order. This is like step three, the awesomeness-of-internets step, but I’m the commenter and the blogger is now Blogger, my blog service provider. They facilitate thousands (if not millions) of blogs. They cannot be expected, by ANY stretch of the imagination, to know what the hell is going on, any more than Australia Post can be expected to know what’s on the back of every postcard that goes through their facilities. The blame for this post, while Blogger is ignorant, falls with me. They are a common carrier, from what I know of the definition, and it ain’t their fault.
So, what’s with publication and conversation? In the above paragraph, I’ve assumed publication because that makes the argument clearer with regards to the status of common carrier. I think that it is publication. However, I don’t think people realise this. If a newspaper were to put out an article detailing the information that was up on that Facebook group, they would be publishing sensitive information that is the subject of a court order. Whether that’s in print, or online, or by a company, or an individual, I don’t think matters. People think of Twitter as being a conversation, and it is – but it’s a conversation that is published. It’s on the net, it’s there, it’s not going away, and it’s intended to be read by others (public timeline, anyone?). That Facebook group was intended to be seen (and joined) by people on Facebook, which sounds an awful lot like publication to me. However, it’s a different kind of publication: instead of the traditional one, where the people providing the tools to publish are the ones doing the publishing (magazines, publishing houses, newspapers), the tools in this debate (mass online communications tools) are far removed from those who would publish (mass online tools, haha). The providers of these tools know not what the idiots do.
So, what do we do about these people playing merry hell with suppression orders? I honestly don’t know why the people who put up these groups in violation of a suppression order weren’t arrested and charged with it. Do we arrest the manager of Facebook? I think I’ve shown that no, we can’t do that, because he’s just a common carrier (Think Schulz – “I know nussing! Nussing!”). To me, it seems obvious that we can’t turn off the internet so the tools aren’t there – would you shut down Australia Post because someone might send a bomb through it? To me, it’s the same with the intertubes. Shutting down internet services because a high-profile case is happening makes no sense. If they really want to, they can print the info out on a flyer, make five thousand copies, and leave them all over the CBD. That, also, would be publishing. What are you going to do, shut down every Xerox in town? An unenforceable law is no law at all, and it makes a mockery of the system. Arrest and charge those who have committed a crime, but don’t punish the hundreds of thousands of people who had nothing to do with it.
If I have time, I’ll actually get my brain into gear and look at the ethical implications of double-standards in law between traditional and ‘new’ media of publication. Today, though, is not that time.
