Tag Archives: free speech

Anonymity gives people a voice

There’s been a lot of talk about anonymous social media accounts being used for all the wrong reasons in the UK* recently. It’s easy to overlook all the people who choose anonymity without malice. I don’t tweet anonymously so I can troll people, let alone send abusive or threatening tweets. In fact, I actively avoid getting into rows on Twitter. I challenge the lies, hypocrisy, stupidity and facileness of David Cameron and George Osborne directly from time to time but that’s about it. I criticise policies, parties, people, media outlets and companies but don’t directly attack people.

I blog and tweet anonymously because I market legal services through the internet under my real name. I’m not ashamed of anything I say on Twitter or here – I’m just being myself – but if a prospective client googles me, what are they going to think about my being left of Labour? I don’t do much good in this world but I try and I can only try if I can, yes fine if you want to put it that way, hide behind a mask. In theory my political opinions shouldn’t matter to clients but the reality is rather different once they’re actually out there. Don’t ask, don’t tell is safer. What would the prospective client think about the dirty jokes, sweariness, occasional giggly drunk tweets or early morning pre-coffee tweets? Or the posts here on chronic pain? Would it make them uncomfortable dealing with me? Would I want to deal with the potential for being pitied if all the other stuff hadn’t already put them off? Anonymity allows me to be outspoken, honest and even a bit vulnerable. Without the ability to do that I would feel I have to stop saying a huge portion of what I say here and on Twitter. I wouldn’t feel free to be me anymore. My Twitter account would become a less sweary, less funny version of Charlie Brooker’s Weekly Wipe (or a more funny, more sweary version of TV Burp). I may well stop using Twitter completely because what would be the point?

I can think of loads of great people on Twitter who don’t tweet under their real names. They inform me and others and add so much to my enjoyment of Twitter. Among other things, like me, they also tweet politically and tweet dirty jokes. Some of their late night drunk tweets are a welcome break from bad news with my morning coffee (you know who you are). I don’t know their reasons for tweeting anonymously (except in the case of parody accounts where it’s obvious) but I guess they’re similar to mine because they’re good people. They’re not out to cause misery to others. They want to be among like minded people. They want to say things they feel need to be said and which the mainstream media doesn’t say. They want to laugh too.

People may also be more willing to share their experiences on hashtags dedicated to gathering stories of racism, sexism, ablism, homophobia etc if their accounts are anonymous. Those hashtags can be a real eye opener for people who haven’t experienced whatever they’re about. If they change perspectives, the stories can change the lives of the people sharing them for the better too.

I’ve never used and have no intention of ever using ask.fm but isn’t one of the ideas behind it to ask questions users would be embarrassed to ask face to face? Surely David Cameron wouldn’t need to call for a boycott if anonymity was removed because kids would stop asking questions they’re embarrassed to have their name put to. Is that a positive outcome for those users? It could be in some cases, I suppose. I don’t really know enough about it to say but at least I’ve got the sense to admit it, unlike our fearless leader who, as one site put it
“sent his mouth ahead as an advance party, allowing his intellect and reasoning to arrive at their leisure.”

Following the vicious barrage of tweets she received, Stella Creasey MP said:
“Fifty per cent of stalking cases involve both on and offline harassment – with many perpetrators using the anonymity of the web to pursue their prey”
It’s a fair point but it also ignores another potential reason for using social media anonymously: it actually provides people with a measure of protection against online attacks shifting into the real world (not complete protection, as Old Holborn discovered when his offensive trolling backfired with all the fury of a box of semtex, but enough to make it difficult for the attacker). When you think about how serious some of the threats to high profile women who get taken seriously by the media and police have been, is it any wonder some people would rather not put information out there which could draw Twitter abusers to their home or office with barely any effort at all?

I agree that it’s important to deal with the problem of threatening and abusive tweets and cyber bullying on a range of sites but, even if enforcing a ban on anonymity wouldn’t throw up technical and organisational problems, I don’t believe it could possibly be a proportionate response to the problem.
If I could only tweet under my real name I would indirectly lose the ability to say what I believe through the law of unintended consequences. A lot of good people I know through Twitter (and ones I don’t know yet) would too. As ever the test of convictions is whether you apply them universally and there are also people on Twitter whose politics I despise but who also have the right to free speech, provided they aren’t breaking laws against inciting hatred and violence. Some of them may tweet anonymously due to a combination of fear of a backlash from other users and fear for their jobs.

A lot of people participated in the Twitter Silence recently. A lot of people say that online abuse, threats and bullying silence the people they’re aimed at. If anonymity was to be banned on Twitter voices of dissent and people who are just connected with other people without ever causing harm to anyone would be silenced by default and an important part of Twitter really would go silent, not for a day but for good.

* I’m aware of steps to supress use of social media in other countries of course but the reasons are different and the arguments against it are already being widely made. That said, anything the UK Government does or says to restrict the use of social media and the internet leaves a tiny crack for a government in a repressive country to stick a jimmy in with the argument “the UK has its values and social order. It takes steps to protect them. We are also taking steps to protect our country’s values and social order. The UK Government should support us in this.”

Advertisements

Un-fracking-believable

You may have seen this Guardian article about a lifetime “gag order” being imposed on children which purports to prevent them from ever talking about fracking. I should emphasise that this isn’t a Court imposed order, as such. It’s a term of a Settlement Agreement between the parties to a dispute, although according to the Court transcript, the Defence made it clear that the Claimants would have to agree to this if they wanted to settle the claim at all.

The position here in England is that a minor who signs a contract can enforce it but it is much less likely it will be enforced against them. However, in this case, the minors aren’t signing the Settlement Agreement themselves. It’s being signed on their behalf by their parents. It’s arguable that the whole system would grind to a halt if decisions taken by parents on behalf of their minor children during Court proceedings couldn’t then be enforced later on. The difficulty here is that the restrictions are so broad if the gag on commenting on “Marcellus Shale/fracking activities” should properly be read as “Marcellus Shale or any fracking activities”, rather than “Marcellus Shale or its fracking activities”. The Claimants’ Attorney believed that the broader interpretation was intended:

“Mother: My concern is they’re minors. I’m not quite sure I fully understand. We know we’re signing for silence forever, but how is this taking away our children’s rights being minors now? I mean, my daughter is turning 7 today, my son is 10. How — I guess that concerns me that we need to keep them safe, but —
THE COURT: Do you want to address that?
MR. VILLARI: I have counseled both Chris and Stephanie, as drafted, the order could be read to forever bar their two children from ever commenting on anything to do with fracking or Marcellus Shale. I have counseled them that they are minors. I, frankly, Your Honor, as an attorney, to be honest with you, I don’t know if that’s possible that you can give up the First Amendments rights of a child. I don’t know. The defense has requested that be a part of the petition as worded. I will tell you honestly we objected, but again it was a take it or leave it situation and these people have made, I think, a wise decision on behalf of their family. They continue to offer this concern to defense.”

It’s one thing to agree not to disclose anything related to the case itself but an agreement never to talk about a hot topic energy source seems obscenely wide if that’s really what they’re agreeing to. I could see Courts being reluctant to enforce a contract which imposes such a wide restriction on the fundamental right to free speech, even if the parents entered into it in good faith in the interests of and on behalf of the children. The transcript indicates the Claimants’ Attorney was keen to stress his reservations (I can hardly blame him for feeling the need to do some ass covering):

“MR. VILLARI: But I will tell you as an attorney, I just don’t know whether you can affect the First Amendment rights of a minor in a proceeding like this, and the agreement does do that, in my opinion. That’s why I have counseled them. I have told them in an abundance of caution, and I’ll be frank with you, to protect my law firm because I don’t feel like someone coming around when they turn 18 and saying, “Look what you did to me.” The fact remains as written it could easily be used against the two of them when they become of majority. I think that does –“

and the Judge himself said:

“Nor does the Court have an answer for you, and I would agree with counsel that I don’t know. That’s a law school question, I guess.”

I don’t know either. it’s possible that the level of compensation given under the Settlement Agreement has been uplifted to take account of the restrictions. Maybe a Judge would enforce it on the basis that it would be inequitable for the children to take the money and run. What’s clear from the transcript is that the Judge, the Claimants’ Attorney and the Claimants themselves had concerns over enforceability. The Defence is taking a pretty big risk if it hasn’t hedged it’s bets and offered an alternative to a complete lifetime gag in the Settlement Agreement (we’ve got no way of knowing if it did) because a Judge could potentially strike out the entire non-disclosure clause, rather than amending it into line with the law. I assume that Agreement does include a provision saying if anything is unenforceable it should only be amended to the extent needed to bring it into line with the law so that only the unenforceable portions are deleted and not the whole of the non-disclosure provisions though.

I can’t imagine ever doing this and I practice in England so I’m not sure if there’s something I’m missing about the law in Pennsylvania (it doesn’t seem like it, from the transcript) but, if it was me here’s what I think (off the top of my head) I’d do if I wanted to strengthen the non-disclosure provisions I was imposing. Firstly, I’d be a damned sight clearer about what can’t be discussed than it seems from the transcript they have been. I’d advise against extending the requirement to all fracking but, if that’s what I was instructed to do, I wouldn’t word it the way they seem to have done. I’d also (*puts evil lawyer hat on*) want the Settlement Agreement to say:-

a. In addition to the parents’ obligation not to discuss fracking, they will use best endeavours to procure that their children don’t. If the children do discuss fracking, you then have to look at what steps were taken (eg did the parents ask their children’s school not to include the children in discussions on fracking). Inevitably you’d have an argument over what constitutes best endeavours (should the parents demand a copy of the curriculum and exclude their children from school on a day when fracking is being discussed, for instance – how would that weigh against truancy measures?) and it’s easier to prove the children said something about fracking than whether the parents took steps to prevent them doing so but at least you’re imposing responsibility on responsible adults if you do that. That’s effectively what the parents themselves say in the transcript: we’ll try but we can’t control every aspect of our children’s daily lives. Adding this to the blanket gag on the children at least gives the Defence an alternative method of enforcement if the broader gag on the children is found to be unenforceable;

b. If my client wanted a lifetime gag to be imposed on the children, I’d suggest holding back a portion of the damages under the terms of the Settlement Agreement. If 80% is released now, the remaining 20% could be released in two tranches as each child reaches 18 (or 90-10, whatever) on condition that the relevant child, now able to sign away their right to free speech themselves, must now expressly confirm their agreement to the non-disclosure obligations. You run the risk that the children say “no thanks. I’d rather be able to speak out against you” but you’d still potentially be able to hold the adult children to ransom by saying the parents are failing to use best endeavours to stop them if the children were tempted to do that. I’m very glad I’ve never been asked by a client to come up with such a singularly unpleasant solution though.

Spam reporting as a weapon

Free speech. Always an emotive topic. Two incidents came up on my Twitter timeline. Tom Pride apparently had a post marked as spam by Facebook on the word of someone working for Job Centre Plus. His post was a satirical dig at Atos and the DWP. Scriptonite Daily also found herself marked as spam for posting about Artist Taxi Driver’s protest against the privatisation of the NHS.

I see the spam button and other complaints mechanisms as being like the button which fires the nuclear missiles. I’ve acted for clients wrongly reported to eBay and Amazon by vindictive competitors. I’ve also acted for genuine victims of intellectual property infringement and for providers of content services and forums. The balance of rights on the internet is a difficult one but in many cases, the provider takes the word of the complainant and the burden of proof is on the person complained of. Providers of internet services (confusing terminology alert: not isp’s) are scared of the consequences if they don’t act swiftly to remove content which is complained about. They’re scared, for example, of claims for intellectual property infringement by companies as big as they are and for defamation. They’ve even got cause to fear criminal sanctions: directors of Google Italia were prosecuted after a video of a young disabled boy being attacked was posted on Youtube and not removed quickly enough once people started to complain. They (inadvertently) published a hate crime. That case is still rolling on, years after the video was posted, hanging over people’s heads. They were convicted, they successfully appealed but as of this month their Global Privacy Counsel blogged that the Italian prosecutor is now taking the appeal up to the Supreme Court. They’re not wrong to fear those things. Cover your ass is bound to be the mantra in back rooms, no matter what sites might say in public about the importance of free speech and the sharing of content.

A swift peek at Google showed Facebook has quite a track record of censoring supposed spam. British victims of the policy may be slightly reassured to learn Americans have been complaining about this for some time. One man wasn’t even allowed to publish a list of Obama’s achievements during his first term in office. How the hell is that reassuring? Because Christians on the right are out there complaining about the same thing. It seems Facebook has suffered from a hyperactive filter in the past, with content being automatically marked as spam. It also seems that Facebook is an equal opportunities censor of content which is manually complained about. Left complaining about right, right complaining about left, government employee complaining about satirist. Round and round we go. What do we expect Facebook to do other than follow the time honoured tradition of covering its own ass.

What’s absurd about the situation is the concept that something one person doesn’t like can be classified as spam. Privacy laws matter, don’t get me wrong, but there’s a world of difference between the prevention of direct contact with other users to sell them things they don’t want and an individual posting a link to their own blog on their own wall. If someone you know likes it and it ends up in your news feed, that’s not spam. It’s a properly functioning social media site. If what’s written offends you so much you decide to unfriend the person whose “like” brought it to your attention, fine. Do that. Ditto if your “friend” posts a link to content you don’t like by a third party on their wall. This is precisely why complaints are like that big red button though. It’s so easy for the complainant. Where does it stop? How far do Facebook and others allow rival political factions to go before they have to step in and pull a Herod? Imagine applying the six degrees of separation rule to this problem. I complain about you. You ask a friend to complain about me. I ask a friend to complain about them and so on and so on until we reach the point of mutually assured destruction. Only bland, beige content featuring people’s cats and babies would be left. My personal opinion is that spam reporters should grow the fuck up. Spam reporters who report on behalf of their employers without their knowledge or consent (particularly when that employer is a state entity) need training on what is and isn’t appropriate behaviour because, when it’s a state agency being dragged into the web of pettiness that is spam reporting, the situation becomes more dangerous. It interferes with free speech. It’s a cheap, nasty and utterly inappropriate shortcut to shut people up when it wouldn’t be possible to get an injunction to do so. In cover your ass terms, Job Centre Plus should consider whether they want theirs hanging in the wind if a blogger claims they’re responsible for the actions of their employees on social media like Facebook.