Comments: Libel Law vs. Blog Evangelism

hear, hear. we've said it before, we'll say it again. It's good to know that in my 3-month vacation from the blogs, nothing has changed. The same empty suits are making the same empty arguments.

Once again, Jarvis and Crawford et al continue to ignore the core lesson of Lessig's CODE. Behavior functions of a system do not arise out of the wishful thinking of its various users; they instead arise from the architecture, which is set by its designers. If you want to ensure a level playing field, engineer it.

At sometime in the past year or so I think I had floated the idea to you by email that a local Internet studies center affiliated with, say, a law school, might devote some time to investigating a framework for online third-party arbitration (or Alternative Dispute Resolution, ADR) to settle these disputes. But it's been a while since our local law center has looked into it.

Posted by Jon Garfunkel at December 20, 2006 08:43 AM

I'm not sure what the Web has changed. People who were attacked in the Press always had the option of printing up a response and nailing it to all the trees in the neighborhood.

For those that want to water down libel laws, there's always been a convenient reason to do so.

Posted by Leo Klein at December 20, 2006 10:55 AM


"they instead arise from the architecture, which is set by its designers. If you want to ensure a level playing field, engineer it.
I would agree with this but it is very hard. I work in commodity markets, some with rules, some with contracts and have seen and studied the level playing field problem. Buyers, sellers and traders are different from columnists, bloggers, commenters and readers, but they have a common core and major difference.

The common core is that both groups ostensibly operate in a community bound together by a common good (eg natural gas as a commodity or ideas online).

The major difference is that in commodities the markets either have rules or there are contracts between the parties (our first rule here is no contract no gas). There is no law, regulation or instrument that people online can or will submit to collectively.

"for online third-party arbitration"
Say Linus on lkml calls someone asshole, what makes you think he will ever submit to any forum to get a retraction. "Get a life" is the most response you might get.
I also don't think there would ever be enough resources to even moderate the small flamewars that will break out today that "people" [who] think are important, let alone a major diatribe from an A-lister (with lawyers?). Easier to get the article posted to slashdot or digg and have their site taken down. And even that won't necessarily work.

Posted by tqft at December 20, 2006 05:51 PM

Ian ("tfqt") -- we've done this math before here. Of the supposed tens of millions of bloggers, only a tiny fraction would be interested in an arbitration system. But the sheer percentages shouldn't doom it.

If you're here on this site, I assume you read about Seth's history. I've witnessed, and counselled, victims of more recent character attacks. One tends to think of person vs. person (or worse, anonymous persons vs. person), but there's also institution vs. person to consider. Suppose that there were, at the time, a vigorous culture of alternative dispute resolution, and that Seth had proposed that with the offending publication; and perhaps there were enough social pressure to bear on that publication.

As far as the blog world goes, there's the libertarian wing led by Jarvis, and a more standards-guided wing driven by folks like Dan Gillmor. In the middle is our friend Bob Cox, head of the Media Bloggers Association, who very dearly wants blogs to be taken seriously. The MBA stresses in its guidelines that members are not to harass each other. How possibly can they enforce this fairly without some online dispute resolution?

Posted by Jon Garfunkel at December 20, 2006 10:42 PM

I don't believe everything I read in the NY Times or take it too seriously so why would I take any "MBA approved" blog anymore so?

If approx. million
readers think the NY Times is OK, why would a MBA blog be better?

If the NY Times slams Seth (or yourself) for X, Y or Z could any ADR afford to take them on? Pro-bono lawyers can be found but they are not an infinite resource.
Or would you plan top ask the NY Times et al to join and abide by other peoples' rules ?
You would have better luck with the NY Times' Ombudsman.

Is there a significant difference?

"How possibly can they enforce this fairly without some online dispute resolution?"
They can't, and I doubt it will stop people harassing each other even with one if they are members. It will happen. If someone was ejected - they may well form the AMB (Association of Media Bloggers). Fork of a project not going in the direction you like? Nah never happen. And that would dilute any and all such organisations credibility.

"a tiny fraction would be interested in an arbitration system."
Then why bother - drop both their feeds until they pull their heads out of their collective asses and spend your time more usefully elsewhere.


Posted by tqft at December 20, 2006 11:53 PM

Ok, I'll concede that the use cases are narrow here. But back to my original point, that narrow use cases are traditionally the realm of the academies.

There's a crop of "hackademics" (even Jarvis embraced the term), who, rather than analyzing how X={Copyright|Ontology|Libel law} would apply in the cyber age, find it's cheaper to write an op-ed (buttressed by countless, if weightless, blog posts about personal anecdotes) which states simply that X doesn't apply anymore. And thus they are not helping us think, they are telling us not to think. The message: "X doesn't matter. (but I matter)."

I can't speak for Seth, but that's at the heart of my discontent for these folks.

Posted by Jon Garfunkel at December 21, 2006 09:00 AM

Has anyone given much thought to how the power laws of the web get incorporated into the rest of the world? Arbitrating a dispute to reduce disparities within the Internet environment may reduce it's effectiveness in leveling some of the power disparities in the real world. For instance, a person who is stomped on by an influential politician and smeared in the mainstream media because they seem to be a "nobody" may have some stature in the blogosphere: the politician is heard by the newspaper audience, and the blogger is heard by the online audience. Even if the politician has puny little blog and complains he isn't getting equal time, this is fair. In fact, I'd argue that the politician still has unfair advantages in the real world since is influence is related to control of resources (including access to lawyers) while the blogger might have nothing more than his own voice.

I do object strongly to the MBA posing as judge and jury. They don't adhere to proper investigation: only the gut feelings and prejudices of Bob Cox slightly mediated by behind-the-scenes email list discussion among MBA members.

I asked for the MBAs help - which they have been willing to give male bloggers in similar circumstances. Instead, I never got a direct reply. Any investigation was conducted without ever asking me a single question, which reminds me of the worst aspects of bureaucratic pseudo-investigations used to rubber-stamp a pre-determined decisions. When I commented about this in the wake of MBA's success with the Lance Dutson case (and I have to point out my style is closer to a model of courtesy than Lance Dutson's), my comment was blocked and followed by Bob Cox closing the thread with a vague comment about "spam". He did approve my second attempt to post the comment when I complained to other members of MBA, including Seth. But then Bob went to his blog to write a long tract about how the MBA will ALWAYS be there for bloggers who DESERVE their help. This implies I was secretly judged "undeserving".

How could Bob Cox make that judgment? Only by reading what the mainstream media had to say about me (where I was at an extreme disadvantage) and reading my blog (where he probably figured I was holding my own).

I didn't get the help I needed, and as a result I had to face months of legal process by myself. That in itself sent a message to other bloggers that real world power still trumps whatever "voice" they have in the online world. Moreover, I ended up with an Injunction against what I found by searching the public Internet. This is illegal on a few levels, but it could be done in the name of "public safety" because I had no defenders. If my voice had been tamped down by some "leveling effort" by the MBA, this travesty would have occured in the traditional way - quietly in some back room. However, I held on to my blog, and I've been able to continue to tell people what happened to me, and I've been able to help other whistleblowers fight the gross disadvantages they face in the real world.

One last thing - a "blog swarm" is more powerful than any one voice. I find BOTH the mainstream media and bloggers to be pretty bad at making snap judgments and prone to making errors. However, I regard bloggers more credible than the MSM because they can make corrections quickly. Also, there is a social element to blogging which may eventually mitigate the temptation to opine and smear on minimal information. I've now met some of the people who smeared me (based on the MSM), and I actually now see one at a breakfast on a regular basis. Surprise - I'm a real person who may live near you! When bloggers emerge as people and other bloggers can see the effects of their actions, that will play more of a tempering role than any rules issued by the MBA.

Ps. Neither Jarvis nor Gillmor stood up for me either, so the arbitration issue isn't about the structure of the MBA or Bob Cox's character. Basically, I think all the pundits on the Internet would end up reinforcing real world inequities in their attempts to govern the Internet.

Posted by gadfly at December 22, 2006 01:18 PM

"gadfly" -- all good points, but I fear you bring up here the "fallacy of infinite justice." A court can't absolve itself simply because it can't solve all of the root causes of the conflict at hand. It exists to adjudicate the current concern.

As far as to whether the MBA would act as "judge and jury"-- I don't know. They act as advocates. If they wanted to foster a dispute resolution system, and they want to do it right, I would expect them to disassociate judge from jury.

As to whether "bloggers" are all well-meaning, socially-minded people, I've never concluded that. Once could say that of "Americans" as well, but there are just too many exceptions to that rule.

Now, in your case, it appears that you felt that blogging was a sufficient alternative to legal means. I can't contest that. It's just a bit of a shame that Jarvis hadn't thought to use you (or any other little-known person) as an example to illustrate his point.

Posted by Jon Garfunkel at December 22, 2006 02:36 PM

Hi, Jon -

It's not that I feel blogging is a sufficient alternative to legal means: having a public voice doesn't come near the power of a lawsuit which can ruin a person financially. However, when you're below a certain income level and corporate PR has gotten the initiative so it's unlikely you will get a pro bono lawyer or support from a political representative, then blogging is the only way to stand up for yourself. If some self-proclaimed oversight committee goes around "arbitrating" disputes based only on relative use of the web platform, then they will inevitably take away the very thing that helps to level the off-web playing field.

Of course I would prefer to just have a cheaper and more effective legal system, or judges who are willing to call bullsh*t before someone like me is forced to go through months of procedure. Media oversight that would insist on fact correction even for "nobodies" would go a long way toward helping, too. I never got a reply from my numerous emails to FAIR or from the organization that covers journalist ethics in CA. Until we have at least these things, let the little people retain the power of their blogs to get their side of the story heard.

Posted by gadfly at December 22, 2006 08:54 PM