Anyone even momentarily taken in by the lamentations of social media users and operators to the effect that curtailment of their activities will have a “chilling effect” on democracy should know that, last summer, after I made some critical comments about the influence of Twitter on public discourse, a representative of that organisation rang up to complain.
My point had related to the disproportionate venom of online commentary – the way bloggers, tweeters and so on revert, perhaps obliviously, to pre-civilisation forms of communication, probably because mediums such as Twitter invite first-thought responses and immediately launch them into cyberspace.
I finished with the following paragraph, intended as a parody of the phenomenon I had described: “Personally, I would prefer if, instead of pursuing individuals tweeters, the police arrested Jack Dorsey, the creator of Twitter, and closed his network down. Actually, i wish they wud burn the Twitter founder in oil leave his carcass out for the buzzards. Seriously.”
Even I, who had railed against the assassination of irony perpetrated by internet discourse generally, was astonished to hear that a representative of the Twitter organisation had telephoned (yes, telephoned, and on a landline too!) my page editor at the Irish Times to complain about that final sentence. She said Twitter had seen my article and was very unhappy. The final paragraph “crossed a line”, they felt. Asked if she wasn’t able to observe some note of irony in the “buzzard” sentence, she replied: “No, I don’t see that.”
And here’s another irony. Some weeks later, I had reason to attempt contacting Twitter to request they remove a defamatory posting timed to attack me at a late stage in November’s so-called children’s referendum. I discovered Twitter does not make available either a telephone number or address for complainants to use.
Asking around in urgent fashion, I gleaned that the only way of making a complaint was to sign up to Twitter. Still, it’s remarkable how much difference a few months can make. Not long ago, those of us warning of the dangers of social media were routinely and aggressively dismissed as Luddites or worse – now there is a rapidly growing sense that something needs to be done, and soon, to curb the toxic and lawless climate developing on the web.
The “chilling of democracy” argument used to defend online commentary in its present toxic form can readily be flipped over and directed against those who, hiding behind their puerile pseudonyms, seek to present themselves as participants in democratic debate. A bullyboy media culture, which gives licence to anonymous agents to spew abuse and defamatory comments about others, can be profoundly restrictive of free speech, often amounting to a highly effective instrument of censorship.
In some instances, as we’ve recently had reason to observe, the effects of such commentary can be terminal. Free speech and democracy are far better served by a regulated system of commentary, which insists on basic civilities, foremost among which is that participants identify themselves before contributing.
But the new media oligarchs will use any means to protect or disguise their privileged position. Several times recently I’ve noted it being asserted that the legal conditions governing social media are identical to those “conventional” media must reckon with. This is not so. If I defame somebody on a radio programme, both I and the broadcaster become liable.
One rather notorious example is provided by the action taken some years ago against the RTÉ programme Liveline by public relations consultant Monica Leech, about whom a caller to the programme had made lewd and defamatory remarks. Presenter Joe Duffy had immediately cut off the call and apologised, but Leech still won €250,000 in damages in an out-of-court settlement.
By contrast, lawyers appear currently to be advising that an internet provider may avail of section 27 of the Defamation Act 2009 – which provides for a defence of “innocent publication” – if it can show that it was not the author, editor or publisher of the material to which the action relates, and does not monitor or filter the information published on its forums.
A document, Applicable Libel and Privacy Laws in Ireland, published last year by William Fry solicitors, also drew attention to the EU electronic commerce directive, adopted by the European Parliament in May 2000 and subsequently implemented into Irish law. This directive provides that internet service providers who are mere “conduits” will escape liability if they have not initiated, selected or modified the material complained of and did not select the receiver of the information. It stipulates that such providers will not be liable for damages if they have no knowledge of the defamatory nature of the material concerned.
A critical element, however, appears to be the response of the internet provider, which will escape liability only if, once it has obtained knowledge of the defamatory material, it acts expeditiously to remove or disable access to it.