Trading off decency and immunity

Wired on Friday : For every generation, there is something its children are doing behind their backs that must be stopped

Wired on Friday: For every generation, there is something its children are doing behind their backs that must be stopped. Here in the US, the threat comes from MySpace.com, a site that has as much a grip on the children of America, and the suspicions of their parents, as Bebo.com has in Ireland.

There, teenagers post their comments and pictures, with occasionally identifying personal information, tease and bully each other, gossip and get into trouble. Parents struggle to understand what their children are doing on the computer. Police forces and school authorities, of course, overreact.

There isn't a week when some MySpace-related story doesn't appear in the US media . Last Friday, it was an Oregon sheriff's office arresting a 17-year-old student for posting a "death threat" against his maths teacher. The post was a prank.

Overreacting differently was Officer Gene Haynes of Lexington, Kentucky, whose MySpace page contained pictures of his recent arrests, as well as "derogatory language about gays and the mentally disabled". At least, it did until he was disciplined by the police department.

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This week, online service Wired News ran the names of random registered sex offenders through MySpace, coming up with five people whose names and photos appeared to match.

While open to anyone, including sheriffs and felons, MySpace is primarily seen as a teenage haunt. One might be tempted to assume, given that MySpace is owned by Rupert Murdoch's News Corp, that this press attention is down to carefully constructed publicity plants to fuel its 70 million and rising membership. But the company seems to be genuinely concerned at the fretting parents and communities that surround MySpace's members.

Last week it hired a "child safety tsar", Hemu Nigam, to deal with concerns that it has not done enough to protect its younger members. Nigam has worked at Microsoft and the Motion Picture Association, where he dealt with worldwide piracy. More worrying for the corporation, advertising buyers are staying away from the site because of the "unpredictable user-generated content posted".

For MySpace, thanks to US law, that latter issue is more pressing than the former. Then again, the number of web page visits taking the site into top 10 popular sites alongside Yahoo! and Google, according to net monitor Alexa, means it cannot be too tortuous a concern.

In Europe such sites might suffer more heavily from their eager inhabitants' posts. Sites that host user-generated content, as Bebo and MySpace do, are protected in the US from almost all the laws that generally affect publishers. Broadly speaking, if you want to prosecute for something said on a US site, you have to go after the person who said it, not the site that hosted it.

That means that no matter how controversial, threatening to authority, or even dangerous, the pages that MySpace's teenagers create, it's unlikely that News Corp would be liable for it.

In truth, the extreme protection of America's internet laws were the accident of an ancient trade. In the early days of the net, Congress had intended to pass strict decency laws on net content. As part of the deal to win their support, companies like AOL were thrown the bone of complete immunity. Subsequently, the courts threw out the decency controls, but left the immunities intact.

That protection doesn't extend to European sites. European law says that as long as the host doesn't have actual knowledge of the illegal activity, or acts to remove the problem "expeditiously", it has some immunity. But most sites prefer not to test this defence, which is far less solid than its US equivalent. Website providers often take down content on the slightest whiff of a problem.

And with Cabinet considering a reform of Ireland's defamation laws that appears to have no intent in reinforcing the protections offered to service providers, that cautious approach may not change. One of the results of that difference may be that Bebo is actually based in San Francisco.

Teenagers gravitate to where they can talk most freely, and compared to the cautious, European-based websites, MySpace and Bebo offer a place to chatter without interference or a sense of control. That may change: as the stories in the US media increase, there's an opportunity for a politician or group to lobby to change the law.

In the run up to the next US presidential race, the appeal of passing a law that would please cultural conservatives, while also exposing a figure like Rupert Murdoch to criticism, may be too tempting a target for Democrats to ignore. Senator Hilary Clinton has already seized on the threat to children from technologies their parents do not understand, and has sought to control videogame sales to teenagers.

Will the US swap around its original deal over net content, restoring decency controls while rejecting website protections? Or will it realise that one of the few market advantages the US has on a free-market internet is the liberal nature of its free speech protections? Watch their space.

Danny O'Brien is activism co-ordinator at the Electronic Frontier Foundation.