Now this is a road that we have been down before, not just for free speech but even in the shorter (but equally dramatic) history of cyber-Internet-IT-tech law. In the case of libel, for example, there’s the still-controversial Australian finding in Gutnick that publication takes place at the point of download. The sky didn’t fall in and people still publish controversial things on the Internet. On the other hand, there’s a good campaign going at the moment (in the US and in the UK) to do something about ‘libel tourism’; an issue so obvious that it was a punchline in a South Park episode (Trapped in the Closet, episode 9.12, if you’re curious), but still unsolved and certainly made more pressing by the availability of online publications (and the daft multiple publication rule upheld by the European Court of Human Rights last month.

So what does this mean for the sort of behaviour mentioned in Prof. Citron’s paper? A few different things, I would suggest, without going too off-topic:

First of all, the US debate needs to include the idea of looking beyond US borders – not to concede that anything might possibly be more perfect than the First Amendment (I’ll be run out of town if I say that here!), but simply from a practical point of view. Whether you support, oppose or remain undecided on cyber-harrassment, s 230 or data retention or anything else, it’s clear to me that a US-only set of actions (or non-actions) will not be the final word. Indeed, contrary to the argument associated with Goldsmith and Wu’s Who Controls The Internet?, the rebordering of the Net is not complete here, as noncommercial expression (whatever the topic) is probably the most capable of being relocated to a more favourable jurisdiction, as compared with something like online gambling, where there’s an obvious need for local intermediaries (credit card, etc).

In addition, we can note some existing differences in practice between, say, the US and the European Union. Take for example the question of intermediary liability that a few of us have already referred to. Under the EU’s directive on e-commerce (which has, in the usual way, been transposed by the member states into domestic law), which Citron alludes to at note 399, there are three categories when it comes to liability: ISPs, caching and hosting. ISPs are treated very differently to the hosts; the former are generally immune while the latter are not in the case of actual (and sometimes constructive) knowledge. Now I have many problems with the Directive, but within the European approach to freedom of expression, it does have a logic to it, protecting free speech but with strings attached. For those participants who are looking for an apparently workable example of conditional immunity, this might be one. Quite a few of the major US players with EU presences quietly play by these rules, rather than circumventing them through trying to run everything through the US. On the other hand, the EU system can be criticised as taking the dodgy DMCA system (without the safeguards, such as they are) and applying it to everything, not just copyright. Thoughts?

Next, while this debate is happily running along in Concurring Opinions, and plucking one example to illustrate a point, the UN Human Rights Council is still beating the drum of ‘religious defamation’. This is so far from the agonising over whether online threats need a new approach or are either overstated or capable of being dealt with by existing law that it may as well be on another planet. To be honest, if this approach prevails, the suggestions made by Citron will have next to no impact on the rights of speakers as compared with it.

Even the goodies and the baddies are not in obvious places: take for example ‘Anonymous’ (discussed in the paper). We’re hardly dealing with a single mind here, so expecting any sort of consistency is difficult, but I was quite impressed with some of the ‘anti-Scientology’ campaigns that ‘Anonymous’ was/were involved in last year. The campaigns were creative, decentralised, communicated a valuable political message and enriched public debate. Yet does that excuse the series of incidents collected by Citron or negate the rights questions she raises? Of course not. Another point is how valuable anonymity has been to political dissidents across the world, and how there is, in my estimation, broad support for the use of anti-censorship tools such as anonymous proxies. Many of those tools involve some cooperation from US residents, knowing that at present it is relatively difficult (but not impossible) to rely on US law to expose the real ID of a foreign poster. If dealing with the US civil rights problems means that the world loses an important weapon against censorship, there must be a responsibility on those who debate changes to US law and policy to take this into account.

Finally, the elephant in the room, and one that I am perhaps duty-bound to make as the sole European in said room (when I’m not clogging up the Internet, I’m a lecturer at a UK university), is that of the impact of US law in non-US courts. Brian Fitzgerald (a wonderful authority on Australian cyberlaw) responded to Gutnick (and more importantly, responded to the global reception of Gutnick) with a gentle critique in this 2003 paper of ‘dominance by American legal principle’ and a suggestion that judges approach questions like transnational defamation from a starting point of transnational constitutionalism. It’s a paper worth reading, and the argument is quite nuanced and of some use to the question I’m wondering about here. Indeed, it’s perhaps even more pressing when it comes to cyber civil rights, as whatever about the crosscultural aspects of defaming an Aussie businessman in the Wall Street Journal, surely any steps to remedy the marginalisation of groups or the crowding out of unpopular views require some understanding of the non-US world. So in short: Cyber Civil Rights & the rest of the world: discuss!

(A quick word on comments, as it’s proving to be a controversial one. Although I blog without a comments policy and allow everything bar spam on my own obscure blog, I followed the no-comments default on my first post, in the same way that I would take the lead from a panel chair regarding the Q&A format in a realspace symposium. Seems fair. In recognition of the fact that most of my fellow participants are in fact accepting comments, this post is open (for now) and is written to encourage you to supply your own answers; however, this is not an invitation to respond to other posts or themes of the paper, or indeed to the question of whether comments should be open or closed!)

This is what has concerned me about the debate on how to control/liberate Internet expression for some time. In one corner, we have the call for a free Internet, with little or no liability attaching to anyone (not just the tube-providing ISP, but the site administrator or the comment-friendly blogger). Anything that looks like regulation will destroy the innovation that makes 21st-century life so worth living and mean the end of the web as we know it. In the other corner, we have the call to clean up the Internet, make MySpace the world’s policeman, hold everyone in the chain accountable for absolutely everything. Filters for some, miniature American flags for others. I don’t feel that my views are reflected by either camp, and I’m sure that I’m not the only one. Despite the trojan efforts of some, debates like that on bullying on social networking seem to be limited to these two cases.

Cyber Civil Rights suggests that it doesn’t have to be like this. There is an emerging case that differentiates between the different types of intermediary, and – crucially – recognises that many defences of intermediary liability is, today, more about the commercial interests of the big players than protecting speakers against a heavy-handed state. It’s great that Internet service providers were on the side of the angels in the early battles to keep the Internet ‘open’, but given what we’ve seen over the past three years with regard to net neutrality, the idea that protecting the ISP protects the interests of the public is less compelling. Similarly, as social networking, video-sharing and other websites exercise their powers of veto and deletion while maintaining a common carrier-like set of privileges, it’s perfectly reasonable to ask why users (especially those who are the victims of bullying and harassment) cannot expect something in return. The progressive approach to the regulation of new media characterised by Jack Balkin’s recent writings (such as this one on the new terrain for free expression is gaining support, and provides an important backdrop to Citron’s approach to free speech. I’d like to pick up Nathaniel Gleicher’s perceptive point here, on suggested approaches to modifying intermediary liability through new burdens/requirements: my feeling here is if it is going to be the case that intermediary liability will change, it’s time for those concerned about civil rights violations (or indeed, protecting political speech against private censors) on the Internet to be front and centre in making that case. We already know (comparing s 230 with the Digital Millennium Copyright Act, for example) that the US legal system is more concerned, when it comes to duties on intermediaries, about copyright than defamation. That’s a statement of values, whatever way you look at it. Indeed, there is no immunity in a democratic society where no-one is above the law, without a deliberate decision to provide for it, so it takes government to keep government out. Citron is right to question whether this refusal to engage is in tune with the advances that the US has made in terms of protecting the rights of women, minorities and other affected classes.

We must be careful, though, to avoid investing more power in the private sector as a response to this problem, despite the important commitments to corporate social responsibility by some (but by no means all) players in the Internet and new media industries. Whether it be the types of ‘codes of conduct‘ promulgated in the wake of the Kathy Sierra controversy (driven by many supposed leaders of Web 2.0 who are normally found charging for visionary consultancy services and discussing Big Issues at thousand-dollar conferences), the reputation defender services where you can buy a pile of semi-threatening letters, or the numerous entrepreneurs peddling foolproof filtering systems, asking those calling for protection from harassment to put their trust in the children of Silicon Valley and Wall Street is to ignore the important role that governments have played in the introduction and implementation of equality legislation over the last 50 years. I must admit that I’m still dubious about suggestions (re traceable anonymity) of encouraging the website operator (or ISPs) to figure out who is who – it’s quite a lot of power and, on the day that the European Commission is opening proceedings against the UK for allowing ISPs to monitor communications for the purpose of behavioural advertising, one that must be approached with care. (I will return to themes of European Union law in a later post, if my fellow participants will indulge a little bit of compare and contrast).