Category: Defamation
June 13th, 2009
Six things to know if your Facebook username has been squatted
Here are some things to bear in mind about username squatting on Facebook.
- I’m guessing Mike Arrington can get this fixed with a phone call or two. (via Dave Winer) If you’re not him…
- You may have missed the fact there was, before username registration opened up, a form to complete for “preventing [your] trademarks from being registered as usernames.” That form is now closed, and links off instead to Facebook’s non-copyright IP Infringement Form. (Given its wording and stated purpose, I doubt it would have helped with non-trademark-registered individual names anyway.)
- Facebook (like Twitter, etc.) is not ICANN, and the UDRP has no application to its vanity URLs. Facebook’s terms of service, however, mandate that users not “take any action on Facebook that infringes someone else’s rights or otherwise violates the law.”
- Many jurisdictions, (including California where Facebook is headquartered), restrict or prohibit unauthorized use of a person’s “name, image, likeness or other unequivocal aspects of one’s identity.”
- It’s not “squatting” if someone else happens to share an individual’s name and was able to register it or a variation.
- All that said, it seems one’s first recourse as the victim of a username squatter is the aforementioned non-copyright IP Infringement Form.
I’d be interested in hearing about people’s experiences with this — whether it turns out to be streamlined and effective or frustrating and a pain. Let me know and I’ll update.
Previously: Chris Pirillo is socialsquatted; does the law care?
October 8th, 2008
Mail Goggles: an idea that goes well beyond drunk emails
There’s a new GMail Labs app: Mail Goggles, by GMail engineer Jon Perlow:
When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind? … Hopefully Mail Goggles will prevent many of you out there from sending messages you wish you hadn’t. Like that late night memo — I mean mission statement — to the entire firm.
Jon’s idea is lighthearted and fun, but when you look past the humor and consider it more broadly it’s quite brilliant. The current climate of panic is not confined to the financial markets. Corporate legal departments are bombarded with articles and concerns about online corporate communications, liability and more liability. The tug-of-war between PR/communications professionals and in-house legal continues to escalate as it becomes idiotic (if not impossible) for companies to remain on the sidelines of the Live Web. How do you train people to address the IP, defamation, and other legal concerns involved in free-flowing Web dialogue? Must every blog post and wall entry be vetted by a team of lawyers?
Expanding on Jon Perlow’s Mail Goggles idea sounds like a great solution. I like the notion of a straightforward and unburdensome series of questions as precursor to "publish." Instead of math problems, people could be asked to briefly confirm they’ve cleared rights on images, protected confidential information, and complied with policies on the quality of discourse and information provided. If uncertain on any of those fronts, they could be reminded what to do next. While a cookie-cutter approach couldn’t possibly address every legal nuance and pitfall, it could at least act as a sort of triage, speeding innocuous items out the door and letting the moderation/review process hone in on more complicated situations.
Loading ...May 24th, 2008
Section 230 to Twitter and others: Delete away
Community and content management don’t void a site’s immunity under Section 230 of the Communications Decency Act. Participation in an unlawful act does.
I was thus taken aback by the legal analysis included in Wired’s/Betsy Schiffman’s post about Ariel Waldman and Twitter (Twitterer takes on Twitter Harassment Policy):
John Dozier Jr., a managing partner at Dozier Internet Law, says Twitter may have risked its immunity under the Communications Decency Act the moment it “edited” or altered content on the site. (An “edit” could include any sort of alteration, such as promotional placement or displacement on the site.)
“If they’ve edited content based on their subjective perspective, they put their immunity at risk and virtually their entire online business, because then they’d be liable to defmation [sic] claims or anything else that a publisher would,” Dozier says.
What’s at stake in the Twitter-Waldman discussion, as I understand it, is not editing or alteration but removal: something squarely protected by Section 230. (To be clear, editing and alteration don’t per se void the immunity, either.) As Professor Eric Goldman (a Section 230 scholar and frequent analyst) put it in a recent, unrelated post:
47 USC 230. Many people operate under the outdated myth that a site must choose to be either a publisher or a passive conduit. Fortunately, the law facilitates heterogeneous approaches to UGC. Per 230, a [site owner] isn’t liable for third party content with limited exceptions. Ownership doesn’t matter; editing doesn’t matter, prescreening/policing doesn’t matter. …
Evan Williams and co. at Twitter haven’t been invoking Section 230 as a basis for their decision not to remove certain complaint-generating submissions or their author; let’s not start doing it for them.
(Image by carrotcreative, CC Attribution-2.0)
October 8th, 2007
In the trenches with Live Web law at EFF's Bootcamp
If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?
EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.
This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)
I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:
Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’
For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.
Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)
(Image by A. www.viajar24h.com, CC Attribution-2.0)
July 28th, 2007
Chris Pirillo is socialsquatted; does the law care?
Chris Pirillo is on Pownce at pownce.com/chrispirillo, and has 69 friends. Or wait, that’s not Chris. I can scarcely catalog the related legal considerations, which include:
Can Chris stop someone from using his name and likeness without his consent? Possibly, under right of publicity laws, but the ones I’m most familiar with preclude unauthorized commercial uses, and the jurisdictional variations are a nightmare.
Can’t Chris sue for defamation if someone is falsifying things he supposedly said and did? Perhaps, but parody is a First Amendment defense to defamation.
Is this parody? No one here has identified themselves as the "fake" Chris Pirillo. Under trademark law apparently, “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989). (Via Chilling Effects) (I’m not sure if the same requirement extends to parody in general, and haven’t quickly found anything on point.)
Does Chris have trademark rights in “Chris Pirillo?” Let’s assume yes. And let’s assume he wanted to put a stop to someone else’s use of pownce.com/chrispirillo. Do anti-cybersquatting laws extend to other level domains? Is something to the right of .com, etc. even an other level domain? Would Chris have recourse against Pownce, the faux Chris Pirillo Pownce user, or both?
(My head hurts.)
June 10th, 2007
Section 230 immunity for case-based identity/reputation systems?
As an example of someone who thinks he owns his reputation data, here’s lawyer John Henry Browne, threatening to sue new lawyer rating service Avvo over a rating he says is unjustifiably low. That link comes via Joe Andrieu on the Project VRM list, who earlier this week had these musings about reputation as case-based identity:
Perhaps considering reputation as case-based identity, we can start to outline the components required for such case-based systems to work:
* transaction data (potentially including opinions of others)
* algorithmic evaluation
* refutation processThese may not be the definitive requirements for a reputation system, but they seem to be present in the working systems I know of and are perhaps a good starting point.
For the record, I think it is an even bet as to whether or not personal opinions can be effectively integrated as “transaction history” in a case-based identity system, given the challenges of emotions, grudges, slander, and the non-provability of opinions.
It is also a near certainty that for certain types of case-based identity that the user will never be able to actually fully control the data-set. For example, I could significantly improve my credit score if I had read-write control over that data-set. Unfortunately, that would render the current system completely ineffective. Perhaps a new one could emerge, but there are other domains, such as criminal records, etc., where an authoritative reputation requires a data-set with limited or heavily moderated user control–otherwise everyone would erase those pesky traffic violations.
Against this context, the kind of ownership and control over one’s reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It’s interesting that unlike the search engine cases, these attorneys aren’t complaining about reputational slippage; they’re saying Avvo’s rating system has harmed them from the get-go.
What’s not clear from the lawyers’ demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what’s defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing “unlocked” portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman’s excellent post on the recent Ninth Circuit decision/”hairball” that is Fair Housing Counsel v. Roommates.com.)
[Update:] Declan McCullagh has a good piece on Avvo, particularly the section on the difficulty of rating lawyers. Declan points to some of the more eye-opening ratings for folks like U.S. Supreme Court Justices: “When asked about Justice Ginsburg’s lackluster rating, [Avvo CEO Mark Britton] replied, ‘Arguably, her rating is a bit less efficient.’” Arguably. Arguably, things like peer endorsements and client ratings should operate, um, differently when it comes to jurists or legal scholars.
Speaking of which, my own unedited, uncontributed-to rating is 6.3 — the same as Larry Lessig’s, and just two clicks below Justices Ginsburg and Alito (that we all have the same “experience” rating — 3 — is nothing short of comical; Avvo also has my location wrong, which tells me their last poll of CA bar information was several months ago).
Adding to Declan’s thoughts on the slippery nature of this kind of reputation ranking, it will be interesting to see whether and how Avvo will attempt to police the inevitable gaming of its peer endorsement and client rating components. I haven’t yet heard of LinkedIn (which also has an endorsement mechanism) having to contend with this issue, but there are some key differences: people choose to be in LinkedIn (lawyers are in Avvo whether they like it or not, and there doesn’t appear to be an opt-out), and LinkedIn isn’t rating anybody, or attempting to tell would-be clients or customers “how well” a member could handle a piece of work.
[Update, 6/14]: The suit has been filed, see John Cook’s coverage and Regina Mullen’s discussion/analysis of the complaint.
[Update, 6/18]: Santa Clara law professor Eric Goldman weighs in on the Avvo case, Section 230, and Roommates.com:
Let’s put all of this aside and focus on the doctrinal issue that seems preeminent: 47 USC 230. To the extent that the plaintiffs seek to hold Avvo liable under state consumer protection laws for third party content, this lawsuit should be cleanly preempted by 47 USC 230. As an example, I’m reasonably confident that eBay would argue vociferously that its numerical feedback rating is protected by 230 (among other doctrines).
But it’s hardly clear that Avvo gets the benefit of the statute. First, arguably, the lawsuit is based on the word choices that Avvo made in describing/characterizing the data and the output, not the underlying third party data. Second, this case goes straight to the doctrinal murkiness of the Roommates.com case. Recall Reinhardt’s reformulation that Roommates.com lost 230 protection because “Roommate categorizes, channels and limits the distribution of information, thereby creating another layer of information.” Isn’t this exactly what Avvo does too? I sure hope the Ninth Circuit cleans up the Roommates.com hairball before cases like this test its limits.
Also, Carolyn Elefant and I joined the named plaintiff John Henry Browne on the Lawyer2Lawyer show to discuss the case (MP3; feed). Carolyn made some great points about how the legal profession and its institutions (particularly state bar associations) have dropped the ball on making this kind of information accessible (implying I believe that even a system that may be less than perfect/still getting the kinks out is better than nothing).
June 6th, 2007
If reputation is money in the bank, who owns the PIN?
As evidenced by the many lawsuits against Google concerning PageRank or other search result (read reputational) slippage, the notion that you own your digital reputation — even if it is at bottom a collaborative work that begins with your actions, but thereafter depends on the reactions of others — has legs. Michael O’Connor Clarke wrote an interesting post along these lines at Uninstalled called Web 3.0 and Personal Reputation Management:
I’m still not quite sure where I’m going with this, but I feel the need for some secure, personal repository that would hold all of my connections and “whuffie” together. I want to keep my whuffie in my wallet - but not in a Microsoft Passport/Hailstorm kind of way. Ack, no.
It should include most elements of OpenID, a lot of FOAF, and maybe some of the stuff being worked on by the Attention Trust people.
I want it in XML, of course, and I want it to be incredibly easy to implement and use, as secure as it possibly can be, and extensible without being completely unmanageable.
Naturally, I’d want everyone to adopt it – from eBay to Amazon, Facebook to Flickr, Google to Microsoft to Yahoo.
Critically: no vendor (or government) can own it.
My reputation and relationships are mine. They’re the sum of the gifts of friendship and respect people grant to one another over the years; the currency we earn through our life and work. And like the other, folding kind of currency, I should be able to carry my stock of links, linkages and laurels with me from one Web experience to the next.
In law, the intrinsic value of one’s reputation crops up in the mishmash of defamation, intentional interference, and right of publicity principles. Privacy too, since reputation depends as well on what one does not reveal. (You should, or wait you shouldn’t, see the dishevelled snarl that is my hair right now.) And let’s not forget intellectual property (there’s the “P” word), since copyright, patent, and particularly trademark exist in part to protect the reputational identity that accompanies the acts of creating and doing business.
The Attention Trust says that attention is property, that you own it and can store it where you wish, and that such ownership and the right of control go hand in hand. Michael suggests the same is true of reputation. It’s more difficult for me to get my arms around what the sum total of one’s reputation might be, and whatever it is, whether it matters that it’s a joint and not a solo creation (e.g., Tom Williams‘ act of Facebook-friending Michael and vice versa). However, these seem like mere speed bumps to recognizing rights of ownership and control comparable to those posited for attention.
More from Joe Andrieu.
[Disclosure: I'm on the Board of the Attention Trust.]
April 10th, 2007
Blogging codes of conduct: consensus still seems unlikely
My thoughts about consensus on a blogging code of conduct are unchanged: consensus is unlikely, but the discussion is useful. Here are some comments I sent this morning to an editor at Der Spiegel Online (is it just me, or is the tenor of these questions in keeping with a certain presumption of loutishness?):
> - Is self-regulation a sign of profesionalization? Is this something good
> for Blogs?No, I don't think there's any reason to equate the two, or generalize
about the blogosphere becoming more "professional" or otherwise. Some
blogs are professional; some are not and never intend to be. The
diversity is what makes blogs a rich and vibrant experience.Regarding whether proposed codes of conduct are "good" for blogs,
again it's futile to generalize. I think blogging codes of conduct
will continue to develop incrementally and organically, and will be
put forth and adopted by those who feel a particular set of norms
reflect their values. For as long as I've been paying attention
(since 2001), I haven't seen any widespread consensus develop around
any particular proposed code, and though Tim O'Reilly's contribution
thus far is the most visible, it does not appear as though it will be
the exception in this regard (see discussion at:
http://www.techmeme.com/070409/p7#a070409p7). I don't see this as a
question of "good" or "bad," but rather an experiment. It will
resonate with some, but not others.> - Why do Bloggers need a codification of rules for getting along? Where
> are laws and where is common sense not enough? And why is this so?Ideally, laws intervene when the social compact breaks down, or when
blameless parties need protection. There's no "need" for a
self-imposed set of rules per se. But, again ideally, legal
institutions attempt to foster conduct that reflects good public
policy. When it comes to the Internet, at least in the U.S. lawmakers
are perpetually challenged to determine when a laissez-faire approach
best serves that end, and when more formal rules and consequences are
in order. Thus, as a practical matter, bloggers who sensibly
self-regulate can provide an atmosphere that is more comfortable for
their users, and afford themselves some cover from laws that seek to
discourage wrongful acts by spreading responsibility.> - Does the blog scene benefit from this debate about a code of conduct (in
> which way: regarding transparency, open debate, bindingness)?Overall, I would say yes, the blogosphere is particularly well-suited
to open debate and excels at fleshing out the permutations of a
controversy (see http://www.techmeme.com/070409/p7#a070409p7). The
discussion, and the self-examination it encourages, is healthy
notwithstanding the fact consensus may not be possible, and perhaps
precisely because of it.> - How would and how should such a codification differ from the press codex
> for example?By "the press codex," I assume you mean industry-accepted standards
and practices pertaining to journalists. There are both differences
and similarities. It's wrong to equate Tim O'Reilly's proposed code
of conduct with something designed to promote the integrity of
information per se. For that, you might refer to the Principles of
Citizen Journalism (http://www.citmedia.org/principles). That said,
as is true in the journalistic arena, some or many bloggers may decide
that following certain standards and practices can confer credibility
and limit liability. It may also serve an end more integral to the
blogosphere than to "traditional" journalism — fostering
conversation.> - And what's the use of a codex without sanctions?
See prior answer.
> - The lows of US-blog-history from your view? What could self regulation
> have changed?I can't think of any real "lows;" I've been blogging a long time and
see the trend as overarchingly positive for individuals, businesses,
and institutions. If you have specific examples in mind I'll be happy
to try to address them.
March 28th, 2007
Clarifying my comments to the BBC
Jane Wakefield's follow-up piece for the BBC about Kathy Sierra is now available: Call for blogging code of conduct. I'm quoted in the piece and would like to clarify a couple of points and provide you with all the comments I provided her.
I'm presented in the article as a counterpoint to Tim O'Reilly's suggestion that a blogging code of conduct is a good idea: "Denise Howell, a US lawyer and blogger, believes that the blogosphere is no place for legal requirements." I did not say that to Ms. Wakefield, and I don't believe such a characterization is warranted from the comments I gave her. Our Q&A on the subject was as follows:
> 2)Would you advocate a bloggers code of conduct? How do you see this
> working?I think various such codes already exist (Google it and see, you
should find something I think). They allow bloggers interested in
doing so to assure readers and inform commenters that they adhere to
various principles. As a practical matter I don't see such a code
having much impact in a situation like this.
Q: …[I]t would be great to get a few of your thoughts in email. …
A: [I premised by explaining I know several of the people discussed in Kathy's post. Then said:]
The tools of the Live Web have made it easier than ever for ordinary
people to communicate and express views in their individual
capacities, and to provide platforms, e.g. on their blogs, for others
to do so. I think anyone who enjoys any aspect of the Live Web would
celebrate this fact, and agree its vitality would be impaired if the
law expected or required these ordinary people to envelop themselves
and their sites in elaborate legal provisos and conditions if they
hope to be shielded from potential responsibility for the bad acts of
others.The Kathy Sierra situation is forcing bloggers to examine their moral
compasses on a number of fronts. While most of the attention I've
seen is around what sort of discourse should be tolerated and the
deplorable nature of hate speech, the extent to which others should or
must police deplorable or unlawful speech should also be front and
center. Most people would agree that provocative and controversial
discourse is the heart and soul of the Live Web, but that sort of
speech also can attract those who seek to do deeper harm (whether
psychological or otherwise) than merely engaging in such discourse.
Awareness of that fact may warrant and prompt the blogosphere to
emulate more traditional online discussion forums by promulgating
explicit ground rules and terms of service. In the U.S., group blogs
might also test of the scope of Section 230 of the Communications
Decency Act, which limits the liability of those who merely provide a
platform for the online activities of others.
To clarify that last point, Section 230 offers only limited liability protection even in those situations where it has been determined to be squarely applicable. It explicitly exempts safe harbor protection concerning another "information content provider's" federally criminal conduct or intellectual property infringements. As discussed here periodically though, it has been broadly interpreted by courts to bar claims concerning wrongs as diverse as defamation and physical injury. Continuing:
> 1)Have you personally been aware of sexism in the world of blogging? Is
> it harder for a woman to blog? Do the criticisms tend to make reference
> to gender differences?I've personally experienced only welcome and from time to time
challenging discourse, but always on a respectful level. Blogging
offers a largely meritocratic, globally reaching platform that is
accessible to anyone, and can be a vast improvement over other
environments where women do not have such a degree of access and
opportunity. Despite my fortunately good experiences, I do think it's
harder in some ways for women to blog. For women with families, it's
constantly in the back of your mind that you're putting not just
yourself but to some extent your family in the public eye. (Of course
the same is true of male bloggers, but I think women are more acutely
aware of and concerned by this fact.)Blogging is a mirror of society, subject to all of its shortcomings.
I women bloggers can face the same sort of unique hurdles and
challenges as women journalists: i.e., on a substantive level, it can
be harder for them to achieve the same sort of influence and reach as
their male counterparts, and on a personal level their gender itself
can trigger undesirable attention and response.
My thanks to Ms. Wakefield for including my verbatim quotes in context. However, it's wrong to say I believe that the blogosphere, and the Live Web in general, is no place for legal requirements, and, through that statement and its placement in juxtaposition to Tim O'Reilly's comments, to suggest I do not endorse the adoption of blogging codes of conduct. I did not intend to send that message and regret if my brief response left some question in that regard. To the contrary, I believe such codes can play an important role in the process of building law that works.
Meanwhile, Doc has related news.
March 28th, 2007
Kathy Sierra's charges put blog responsibility questions front and center
The frightening threats against Kathy Sierra have been discussed on perhaps hundreds of blogs and in the press yesterday and today. Also under scrutiny is Kathy's implication of various bloggers as bearing some responsibility for a third party's (or third parties') conduct which is rightly and roundly being condemned as reprehensible.
I'm no stranger to those bloggers, though I was until now unfamiliar with Kathy and her work. Jeneane Sessum, Frank Paynter, and Christopher Locke (and more peripherally Allen Herrell) have been part of my blogging family from day one. As can be true of actual family members (if you're lucky), though I don't agree with everything they do, say, or write, they've often been inspirational to me, and have frequently dazzled me with their brilliance, compassion, sensitivity, and personal courage to call bull**** when they have believed it to be warranted. I first hit "post" on a group blog administered by Jeneane, and thereafter on another administered by Frank (it then became his personal blog when he voted us rabble off the island; see Frank, the 'Net never forgets). (Here's a blast from the past for some of you reading: remember blogtank? Who the heck was administering that one?) I first hit "post," along with a flurry of others, because Chris was engaging in some good old fashioned link-bartering and article-foddering, but primarily because of his infectious and ultimately accurate conviction that blogging was, and was going to be, quite an important and powerful form of communication. It was Frank who first suggested to me, indirectly, by emailing me a question, that writing about legal issues for non-legal people might be a useful and desirable thing to do.
So, my consideration of this fracas is not without its baggage. (Groaner; sorry.)
The thing that has stood out in starkest relief for me is not the fact of the threats or Kathy's reaction to them. As others have ably pointed out, it's a big, scary world we live in, populated in part by a tragically high proportion of psycho- and sociopaths. What has stood out for me is the extent of the potential disconnect between what real people actually do with Live Web tools and what the law might expect them to do based on its experience with what it mainly knows: the primarily professionally administered static Web. Real people don't meet a tool like Blogger or TypePad and, upon learning they can set up a group blog, think "Gee! How cool. Let me get my lawyer (what lawyer?) on the phone to draft up some really nifty terms and conditions so everyone will know just what's expected of them, and spell out exactly who owns, and who is legally, morally, and/or ethically responsible for, what." They just don't. In all likelihood they're writing at night when they should be sleeping, or otherwise in their "spare" time. While sophisticated and well-advised political opinion makers might, real people lack both the resources and the foresight. You might think they should, and maybe they'll start to, but imposing such requirements and expectations will quell socially valuable speech. There's no getting around it. Part of the ability of a blog to serve as "a little first amendment machine" does die at that moment.
Kathy has now suggested she does not intend to pursue legal remedies against those not directly responsible for the blog posts she has taken to task:
I should be more clear, though, that while *someone* broke the law with the noose photo/comment, I'm definitely NOT suggesting that anyone else did anything legally wrong.
However, nothing says she can't change her mind. And nothing says that the next person with potential criminal or civil claims arising from an incident related to a group blog authored by real people without lawyer-drafted-and-blessed terms, conditions, and understandings won't attempt to hold the administrators and/or co-bloggers legally responsible for the actionable conduct. As one who has followed the developing law under Section 230 of the Communications Decency Act, I have concerns about its ability to adequately protect each of the individuals who might confront, but by rights should not face, legal consequences in this sort of situation. I have concerns about a court's willingness or ability to analogize this sort of situation to the existing body of Section 230 jurisprudence. Those concerns are of course amplified as to parts of the world where Section 230 does not apply and has no local equivalent.
There's more to say but those are going to have to be my thoughts for now (I'm writing at night when I should be sleeping). I gave some additional comments to the BBC's Jane Wakefield for a piece she is preparing to follow up on her earlier "Blog death threats spark debate." Should they get truncated for (or left out of) the article I'll post them here.
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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White Papers, Webcasts, and Downloads
- Three Steps You Need to Know to Stop Data Loss Varonis Sensitive data exposed to misuse or loss... it is the stuff of nightmares ... Download Now
- Building the Virtualized Enterprise with VMware Iinfrastructure VMware VMware virtualization software has been adopted by over 120,000 enterprise ... Download Now
- Why Isn't Server Virtualization Saving Us More? A Few Small Changes May Dramatically Increase Your Efficiency VMware Companies have rapidly adopted server virtualization over the past few ... Download Now
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Smart Tech
Expert advice on innovations in healthcare and the green technologies that make it happen.
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Smart Business
Discussion and advice on management issues that revolve around making your world smarter and more useful.
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Smart People
The best and worst moves in the management and strategy trenches.
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