Silence in Court – Five Internet Legal Myths Dispelled

Silence in Court – Five Internet Legal Myths Dispelled

Certain myths regarding how the law relates to the internet still seem to be highly prevelant, despite failing to stand up to any real scrutiny. Many people assume the law to be an unwelcome interference in the freedoms offered by the world wide web. This motivates outspoken users to continually call for legal reform where none is needed and to treat any law relating to the internet with suspicion. This results in the real issues and real solutions often being overlooked.

In recent days, I have been involved in a vibrant online debate on how the law should be applied to social media and whether it is even possible or practical to do so. It was prompted by police requests for Facebook to remove specific pages that breached a court order enforcing a media blackout on images and certain details surrounding alleged Victorian bushfire arsonist Brendan Sokaluk. This led to Laurel Papworth debating the issues with David Galbally QC on Australia’s Channel Seven Sunrise program. Following the program, Laurel wrote two posts on the topic — here and here — while I gave my alternative viewpoint on my Netregistry blog. Many other posts followed and the comment sections became a hotbed of discussion and fierce debate.

It was during these debates that I came across a number of comments that demonstrated mistaken beliefs regarding the law. What worried me was that such myths were still common and being used as justification in an important debate with potential ramifications for the future of social media.

Below are what I believe to be five such myths regarding the law and the internet. You may disagree, but before anyone decides to post comments doing so, perform some research. You may be shocked to discover that the law is not as stupid as some may think.

If, on the other hand, you are a better legal brain than I (and I mean that you have first hand experience or relevant quals, not merely a strong opinion on what you think should happen) and want to clarify one of my admittedly simple examples or correct a misleading generalisation, go right ahead. I don’t pretend to know it all, merely that I’ve read deeper into the subject than many.

Myth 1. Social media should not be treated like traditional media under the law

It’s called social media – the clue is in the name. But before anyone says that a name is a name and can be changed, calling my cat a food mixer doesn’t stop it purring or crapping in my slipper in the night.

Although there are many that hate the phrase ‘social media’, it evolved for certain reasons. The basis of laws that concern us here revolve around the concept of ‘broadcast’ or ‘publication’. The legal definition of ‘publish’ is far wider than you may expect.

The meaning of the term publish differs according to the context in which it is used. In its broadest sense, the term publishing describes the act of making something known to the general public. A publication can be accomplished by speaking in a public place, printing information on paper and distributing it on the street, buying or otherwise securing time on television, placing information in a circulated newspaper or magazine, or other similar methods.

Therefore, content placed on the internet definitely falls under the legal definition of ‘publication’. An article on a newspaper’s website cannot be considered to be any less available to the general public than if it appeared in the print edition.

But just before you think the key to this is the size of the audience, in libel law a single hand written letter or even an email can be enough to give you your day in court, as the legal definition continues to explain.

In libel law, a defamatory statement can give rise to civil liability if the statement is made public. To be libelous, a statement must appear in print, in a picture, or in a sign. To be considered published, the statement must be received by at least one other person apart from the speaker and the defamed person. In the law of slander, the term publish refers to defamatory statements that are spoken in the presence of at least one other person. A transitory, humiliating gesture that is defamatory also constitutes slander if it is published, or understood, by a third party.

Suddenly makes you think about all those Tweets you’ve sent on Twitter, doesn’t it.

But should a Tweet on Twitter or an update to a Facebook page be treated in the same way, I hear you cry. Surely this isn’t fair, I hear you protest. The issue isn’t the use of the word ‘publish’ or its definition, but the public availability of the content.

A Tweet or a Facebook page — by its very nature — is a public spreading of content, even if that content is only a few words or intended for specific recipients. Therefore, if those words are somehow illegal — by defaming someone, for example — the effect can be the same as if you printed it in the local paper or placed it on a billboard.

Social media is definitely a publishing medium – the only difference is that it is one open to everyone and not just the paid journalists or trained broadcasters we normally accord such responsibilities and legal standards. Just as they have always had to bear the responsibility for the words and images they publish, anyone else should be bound under the same laws. To argue otherwise would be to create such a huge loophole that any newspaper could place its controversial or defamatory stories in a social media environment to avoid legal action. Of course this is not practical or desirable. We all need to bear the responsibility for what we write, wherever it is.

Myth 2. Illegal downloading is about internet users against copyright law

Nope – in fact, the law has little or nothing to do with it. The argument about illegal downloading of copyrighted material, such as television programs and music, is not about whether copyright laws should change or even how they are enforced. It is about how business chooses to make money from the distribution of the copyrighted material it owns or holds rights to. It is about businesses failing to understand their audience, not the law.

Recently, while researching an article for Nett Magazine on internet copyright infringement, I spoke with Ian MacDonald, senior legal officer for the Australian Copyright Council.

There seems to be an expectation that copyright law will change rather than businesses adapting into the new environment and using copyright in new ways. I really don’t think they’re going to wind back copyright in principle as a law, just because people are infringing. If anything, laws have become more stringent rather than being relaxed.

One country about to pass more stringent laws covering illegal downloading is New Zealand. There, the studios and music companies have lobbied strongly enough to potentially introduce a law that forces ISPs to cut off users found to have illegally downloaded copyrighted material. While I strongly disagree with the stance the New Zealand government has taken – as do many others – the fight is actually with the big businesses that called for such a law and managed to sway government because they refuse to change a business model that the general public no longer wants.

Holders of copyright have control over how their material is distributed; for example, on a CD purchased from a store. This is the essential basis of copyright and prevents anyone else from either accessing the content through an unauthorised channel or from profitting from the material. Without copyright, you could print out the pages of this blog, bind them into a book and sell them without ever giving me a penny – and I would rightfully be annoyed but powerless to stop you. (This actually happened to Seth Godin.) On the other hand, because I have chosen to define the form of copyright I attached to this blog by using a Creative Commons licence and because I recognise how people like to use and share online content, I have allowed for anyone to use my articles, quote from them or reprint them. All I ask is that I remain attributed as the author (with a link where possible) and that it is not for profit. Fair enough, right?

But many copyright holders don’t want to change the way they distribute their material – even though more and more people want the convenience sharing content online. I don’t want to wait for months to see an episode of Doctor Who because the ABC shows them six months after the UK, for example, but some television channels aren’t listening to their viewers and want to restrict when, where and how they watch their programs.

The debate is really about how businesses adapt to the new ways users prefer to access product, not how copyright laws should be changed. If entertainment producers chose to adjust how they allow people to access and share their content, in line with how users prefer to use the internet – much as I do with the content on this blog – then copyright would no longer be an issue without a single new line written into law.

Myth 3. There should be no legal difference between gossip in the pub and chat online

An extremely common argument I’ve heard over the last week is the comparison between social media and the casual chat with mates down the pub or at the footy. People will always gossip, even if what they say constitutes slander, incites violence or any number of other offences. But taking those comments onto Twitter or Facebook or placing them on a blog is like grabbing a microphone in the middle of the footy ground and broadcasting the message to the entire stadium full of people. This time it is still illegal, but the person has drawn a great deal more attention to themselves and is therefore more likely to be apprehended, has ‘published’ the comments under the legal definition of the term (see Myth 1) and has also compounded the seriousness of the crime through sheer scale.

Saying that social media conversations should be treated the same as offline gossip fails to understand that the only thing protecting the guy down the pub from prosecution is that he is far less likely to be noticed and the potential effect of his actions are negligible in comparison – not that slandering someone is any less illegal.

Picture this; in pubs up and down the country, there are people who will sell you stolen goods. At some time in our lives, most of us would have been offered a pirate dvd, cheap cigarrettes or something similar while having an innocent drink. Yet the cops don’t race in and collar him straight away because the crime is virtually invisible to the police unless someone reports it promptly enough for the offender to be apprehended. But sell pirate DVDs on eBay and you can bet you’ll see the inside of a court room before long – it is so much more visible and tracable.

Standing up in court and saying that selling pirate dvds online should be okay because it was seemingly okay in the pubs is hardly going to change your prison sentence.

Myth 4. If my web-host is in another country or jurisdiction, I can’t be prosecuted

This myth is actually still very prevalent despite it completely avoiding common sense. As if the law-makers would allow such a major loophole to go unclosed. If avoiding the law was as simple as placing the child porn or phishing site on a server in Bulgaria, we would be awash in online crime.

In fact, you may be subject to as many as three separate jurisdictions with prosecution merely being a case of which one gets to you first.

This is quoted from the Wikipedia entry on Cyber Law because it was the least incomprehensible and jargon-heavy description I could find. But if you don’t like Wikipedia, feel free to Google ‘internet jurisdiction’ and give yourself a headache with legalese. The result is the same.

Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet. As such, a single transaction may involve the laws of at least three jurisdictions: 1) the laws of the state/nation in which the user resides, 2) the laws of the state/nation that apply where the server hosting the transaction is located, and 3) the laws of the state/nation which apply to the person or business with whom the transaction takes place. So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the transaction at hand.

Similarly, countries or jurisdictions outside of these three categories would not be able to take action unless they can prove a reasonable connection with that country. This means that webpages do not suddenly have to conform with every law on the planet – thank goodness. Even if content on my website might be illegal in some countries – a cartoon of Mohammed, to borrow an example – and that content may even be visible from that country, unless I have a provable connection with that jurisdiction, I won’t get a knock on the door anytime soon. But the moment I start selling prints of the cartoon to residents in that country, it would be time to get my affairs in order and pack a bag for the flight in handcuffs.

Yes,this is a very general description of the law and lawyers spend many fun-filled hours making cases for or against jurisdictional claims. There are already many cases where a jurisdiction has attempted – sometimes successfully – to prove a connection allowing jurisdiction based on the interactions between their citizens and the offending website.

It was suggested this week by one commenter that if Facebook had stuck a finger up at the Victorian courts and refused to remove the offending webpages, there would be nothing the courts could do as Facebook is hosted overseas. I think Facebook is extremely aware that it has a strong connection with people in Victoria, with thousands of people in the State signed up as members, and that it would be a damaging but entirely possible presendence to set for the Victorian courts to prove a jurisdictional claim. That could lead to Facebook and other major networks finding themselves beholden to virtually every international jurisdiction by the simple virtue of having so many members there. This is merely my interpretation and someone with more legal knowledge than me may shed more light on the jursidictional claims over Facebook.

Come on — there was absolutely no way the courts would ever allow as simple a loophole in the law as “my server is in Switzerland” to protect someone from prosectution.

If you still aren’t convinced, here’s some further reading:

Myth 5. It is too hard, or near impossible, to police the internet so it isn’t worth trying

What we’re talking about here is the average user, not extremely clever hackers or organised crime gangs that can hide behind complex systems – that’s a different argument just as it is in the real world. The Facebook example that started this debate is a perfect case; those users that posted the content and made the threats that prompted the police to act are clearly identifiable. Facebook uses real names and many of these would also have their address, email, phone numbers and inside-leg measurement on their profiles. Of course, it is possible to create a fake account, but that would mean you only intended mischief in the first place and certainly doesn’t make you untraceable either.

With every computer identifiable by an IP address, police frequently work with internet service providers and telecommunications companies to trace illegal activity back to the source. But they aren’t the only ones. With a bit of know-how, it is possible for anyone to trace an IP address back and obtain enough information to be able to lodge a complaint with the relevant authorities who can take further action. Expect to see more cases of online harrassment, defamation and internet stalking finding their ways into the courts as people become more familiar with their rights and the options open to them to take action.

Of course, no one expects the internet to become a Big Brother state. As in the real world, most cases will require a person to report an offence for the authorities to even become aware. Yet, there are still a large number of users that claim policing the internet is so difficult that it isn’t worth trying. Some commentators (naming no names…) claim these laws place unneccessary controls over online conversation and that trying to enforce them is like “trying to put gas back into a leaking canister with your bare hands” (just to take one comment). The argument seems to be that, because it is impossible to identify and trace every illegal incident online, it isn’t worth enforcing the law at all, conveniently skipping over the fact that most crime in the real world goes unreported and a good proportion that is, remains unsolved. By that logic, we should abolish the police and the courts altogether, but it isn’t a world in which I would want to live.

True, you may carry on with technically illegal activities for years without ever once receiving a ‘cease and desist’ notice or an impenetrable letter from a lawyer threatening you with damages. But just because a person can speed every day for a month, doesn’t mean he has a right to protest when the police camera finally snaps him and sends the summons. It may not happen today or even this year, but over time, more cases will happen of people falling afoul of the law online and a defense that no one ever stopped you before won’t impress the judge.

Failing to accept the application of law online would usher in anarchy. Without fear of prosecution, I could publish any comment about any individual or business I wanted, causing untold damage but protected by this quaint idea of internet lawlessness and freedom. Allow defamation online, or by effect legalising Facebook witch-hunts, Twitter victimisation or hate-mongering blogs, and eventually it would erode our offline laws as well. Soon it would mean newspapers would also be able to print what they want, unfettered by trivial things like truth or public interest. After all, maintaining a law in print that can not be applied online would be to write hypocrisy and contridiction into the very heart of our legal system.

Time for the internet to grow up

Behind all of this is one word – responsibility. None of these arguments are really about the law, but are actually about people taking responsibility for their own actions and the words and content they share with others. Undoubtably, people were extremely upset and emotional that an arsonist could be responsible for the carnage in Victoria and high emotion can lead to feelings of vengeance and anger. But no one could be in any doubt that defamation, threats of violence, abuse to the defendant’s family and the breaching of a court order were socially unacceptable.

Instead of calling on lawyers to find a way to make the internet work within society, we – the users – should take responsibility and find the methods to regulate ourselves. If we continue to behave like spoiled children unwilling to follow the normal rules of our society, then we only have ourselves to blame if the law ends up getting tough and taking the fun out of it all.


  1. Not surprisingly, I disagree with you in every respect. Hah!
    1. There is no such thing as social ‘media’ in a chat context. There are people chatting in social situations that look like media to anyone not used to chatting online,but please, differentiate between social media (articles, distribution) and social discussion (chat, backchannel). Bloggers ranting about overturning laws is not the same as someone saying “I fucking wanna kill whoever did that” on a forum.
    2. Copyright is relatively new to society, hardly protected anyone when it was around, outlived it’s original usefulness quickly and should be dispelled with. It’s not 1920 and trying to fix radio broadcasting popular music, it’s people taking culturally relevant material and making it meaningful for their time. Shakespeare and Socrates never minded. Get over it. Patents were to get rid of Guilds. We need new tools for a social economy.
    3. The thought police will never win the battle of what you can and can’t say to your friends. And to the upcoming generation, thinking about forwarding an email, a voicemail or a facebook wall post is natural. Most people follow less than a hundred people in their online social networks – it IS the pub – they are chatting in a quiet moment with each other. NOT building large networks for media distribution. You are confusing tools with behaviour.
    4. Lot’s and lots of cases of people publishing stuff that is porn in one state, from another state and getting away with it in the US. In the Mohammad example, there is a lot more damage to be done by NOT printing up the cartoon, but by keeping it online.
    5. The community will self-regulate. Archaic laws -such as finding news-virgins to sit on juries will die. The community will not accept uncracked iPhones or other corporate attempts to restrict what it wants to do unnecessarily -and the crowd is faster and hungrier than any other body. But nor will it be anarchy -groups patrol and self-regulate. We’ll see a case soon of 100,000 members dobbing in someone – I’ve seen it in World of Warcraft on the forums, I expect it to move to “real” crimes too. But keeping the naming and shaming to a minimum is tricky.
    Look into the HD DVD crack story – 45 google hits on the ‘net. 45 cease and desist orders sent out. 9 million google hits today – way to go to inflame the “mob”. Not scaleable, not manageable, by our current laws. And saying it SHOULD be so, won’t make it so.
    Incidentally, one of the main things I do is show moderators/admins how to empower themselves in a world where they have very few tools for tracking, managing and deleting rogue elements. It CAN be done but not in a pre-emptive way.
    The world changed and you are still fighting for it to stay structured the way you understand it. Cheers 🙂

  2. Kimota says

    Welcome Laurel – sure you’re not related to my ex-wife? 😉
    I’m not fighting to save anything, least of all the staus quo. What my arguments are about are the actual practicalities of the internet and explaining how and why things won’t or can’t change along the lines you present. Doesn’t matter whether I think one thing or another, there are specific reasons why the law is the way it is and the internet does not provide reasons to be exempted – in fact it provides more reasons to be more stringent, which is what I feel may happen if we don’t get a grip on this stuff.
    As for most of your arguments, I believe I answered them in the post with supporting evidence, particularly why online chat can never be exempted from the law as it stands.

  3. Here’s my take on the issues you raise, all of which need a different treatment.
    1. The notion of publication needs redefinition. I agree with Laurel on the nature of conversation – online is much like the pub. However matters such as defamation, protection of defendants and matters sub judice must maintain importance.
    2. Both copyright and distribution models are broken. Lawrence Lessig has it straight. To argue otherwise is misguided and in denial.
    3. The model here is broken too. Laurel is right when she says the thought police must not be allowed to govern what we can say and where. However, where speech about something is controlled by a court order, the law must prevail and takedown notices should be enforceable. Whether that needs reexamination is another matter.
    4.Trying to control or prosecute the speech of a person beyond the limit of your jurisdiction is impossible. Don’t try. Any law trying to say or do otherwise is tilting at windmills.
    5. As Laurel says, well-managed communities are largely self-policing. Most of this argument is usually couched in copyright terms – iPhone cracks, media distribution, etc. To deny that the laws in this area are broken here and in other jurisdictions is ridiculous. Nanny stating in particular, as our government seems wont to do (not just in terms of the clean feed censorship, but also on issues such as the banning of films like Baise Moi) is frankly, dumb and evil.
    Yes, we need to exhibit adult reasoning and responsibility when using any tool, whether that’s a power saw or the Internet. But for lawmakers, copyright holders or whomever else to insist that the laws as they stand are relevant or adequate to handle 21st Century society and the way the world has fundamentally changed since moving online is blind and arguably stupid.
    Hmm. I’ve ranted now. I should turn this into a blog post…

  4. Great article, even better that you’ve challenged some of the twitterati’s general thinking on these issues.
    So is there going to be some kind of public debate (other than Sunrise) on these issues? Can we pit the social media peeps against the government ministers or advisors and the lawyers? THAT I would like to see.

  5. Jack Plug says

    Gee Laurel if copyright should be “dispelled with” then why would you post a copyright notice on your blog.
    So why don’t you start the process ans “dispell” copyright on your work and put your money where your mouth is.
    “Yes my work is copyright but it’s not “ALL RIGHTS RESERVED”.
    You may take the work, but attribute me please. It becomes very obvious very quickly to people if you don’t attribute the original thinker. Consider the copycat Twitter Agencies if you will. 😛
    You can’t use it for commercial gain. If anyone is going to sell my stories, to a media company or to a paying public, it will be me. However feel free to contact me for a licence.”

  6. Actually in the UK if the material is just vulgar insults on a forum, that would not constitute defamation (so says the the Lord Justice July 2008). Also, in the UK for obscene material, the IWF must act as expert witnesses, and they won’t do that for foreign hosted material. Thus the CPS won’t prosecute material hosted aboard. It isn’t practicable to do so. It would take too long to hunt down all material being uploaded to foreign websites by UK residents! So it is impossible to monitor. A recent case under the OPA showed how a usenet (alt.binaries) writer has been taken to court. alt.binaries uses a local host, i.e. hosted in the UK. This business about three countries and being liable in all three is really more to do with financial transactions rather than publishing laws. I don’t think that there would be any reason for US authorities to want an extradition unless the crime involved hacking the CIA computers. There are also billions of websites and thus its impossible to keep tabs on all of them.