Are we surprised that starting a flamewar with @SandiHLogan isn’t constitutionally protected speech? #auspol

twitter fail image

twitter fail image (Photo credit: Wikipedia)

Yesterday, Twitter was abuzz with a story about a public servant, Michaela Banerji, who had been sacked for tweeting anti-government messages on her account, @LaLegale. Much to Markus Mannheim’s credit, the story was corrected to better reflect that Banerji had not been sacked (EDIT: Apparently, the text wasn’t corrected — Twitter just got the detail wrong; see comments). Even so, Twitter is always ready for a good outrage.

Banerji was a public affairs officer at the Department of Immigration and Citizenship. Her branch head, Sandi Logan, is a prolific user of twitter (@SandiHLogan). By day, Banerji’s job was to communicate government policy. By night, she was attacking said policy and directly attacking Logan over Twitter.

An internal review was conducted to see if Banerji had breached the APS Code of Conduct and the Department’s Social Media Guide. The Australian Public Service Commission has released guidelines for public servants’ use of social media in their personal capacity. When outspoken blogger and commentator, @drag0nista, was revealed to be political adviser, Paula Matthewson, Twitter went nuts about the APSC’s social media guideline (which I wrote about here).

There is a little bit of hypocrisy in the public debate. When people like Logan and Matthewson express their opinion, it’s considered to be a breach of the guidelines. When Banerji expressed her opinion, she’s a hero who deserves protection. It’s one of those unusual verbs: people with whom I disagree breach the social media guidelines; people with whom I agree deserve protection.

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When you’re high, you never want to come down… On @RichardDawkins and Race #atheism #racism

Richard Dawkins at the 34th American Atheists ...

Richard Dawkins at the 34th American Atheists Conference in Minneapolis. (Photo credit: Wikipedia)

Working in an office one day, a conversation was taking place down the corridor.  A sharp difference of opinion was under discussion in which various people were advancing various viewpoints.  One of the participants left the conversation and walked up the corridor towards my desk.  Overhearing a bit more of the discussion behind him, he turned around and shouted clearly: ‘Yeah, but he’s such a poof!’

I was rather shocked at the outburst.  Prior to it, the conversation had been heated but on point.  This random homophobia came entirely out of left field and was entirely out of place.  How did the conversation get to this point?  How did this person think it was appropriate to make that comment?  What the hell is wrong with this person that they’d think this was an appropriate thing to say?

It would be a while before I was this thrown by out of place prejudice again (yay, privilege).  Fortunately, Richard Dawkins was on call to provide such an experience over Twitter.  This time, it was his weird and entirely unprovoked declaration that hatred towards Muslims isn’t racist.

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I hope we swim up out of this flood… How can we clean up new social media when we can’t clean up the old? #twittersilence

Part of this entry is going to seem ridiculous.  A straight, white, conservative male is about to complain of receiving threatening telephone calls.

‘Boohoo,’ you might say.  ‘Each day, thousands of women receive death threats, rape threats, and all kinds of other harassment over the Internet, over telephones, in person, and everywhere else.’

And you’d have a point.  This article isn’t my entry into the Harassed Olympics.  This is instead an article about the way social media has inherited deep systemic problems from yesterday’s telecommunication.

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Better get a lawyer son… On suing Twitter #auspol #auslaw

Some stories are Tolkienesque in their backstories.

A very long time ago (November 2011), there was an internet campaign called ‘#mencallmethings‘.  It was started by Sady Doyle to demonstrate the noxious things said to ‘outspoken’ female writers on the internet by men.

As part of that, Melbourne writer Marieke Hardy decided to name-and-shame the author of a hate-blog dedicated to stalking her.  In a post titled ‘Men Call Me Things and I Know Their Names’, Hardy posted the guy’s name, a picture of him, and details about his family and where he lives.

I’m not a huge fan of Marieke Hardy, but I understand why people do.  When it was revealed that she named-and-shamed the wrong freaking guy, I admit to thinking: ‘That’s Marieke Hardy for you.’

The guy she defamed, Joshua Meggitt, took legal action and settled out of court.

Now he’s suing Twitter.

There have been a lot of confusing articles about the merits of the case.  Peter Black wrote an article on The Conversation:

1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. […]

2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity. […] Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.

3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued.  [Source: ‘Will Marieke Hardy’s Twitter case change Australian law for ever?‘ on The Conversation]

Wait… Wha…?  Amazingly, Black’s article is one of the better ones.  Most of the articles just quote the spiel by Meggitt’s lawyer.  ‘Something, something, Dow Jones v Gutnick.  Therefore, we’re suing Twitter.’

Black’s attempt at analysis follows the usual legal academic position — regardless of the issue, Australian law needs urgent reform:

That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.

If that is indeed the result in this case, Australian defamation law will need urgent reform. [Source: ibidem]

Let’s wind this back a moment.  Marieke Hardy wrote on her blog (not Twitter) that Meggitt was the author of the hate site.  Hardy then linked to it on Twitter.  Dozens of Twitter users retweeted Hardy’s link and added defamatory content.  Meggitt’s claim is that Twitter, as publisher of those retweets and added comments, is responsible for the content.

But, Twitter’s terms of service state:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TWITTER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES […] RESULTING FROM […] ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES […] [Source: Twitter]

The question is to what extent this indemnifies Twitter from claims arising from the use of its services. The answer appears to be: ‘A lot.’  The case is weird.

Indeed, it seems that’s the point.  When Hardy incorrectly identified Meggitt, she used her celebrity status to wreck a guy’s reputation.  $15k will only go so far to draw attention to the fact that she named-and-shamed the wrong guy.  A few grand on a lawyer to sue Twitter and release a media statement about it, on the other hand, draws a lot more attention.  Instead of being the guy named-and-shamed, he’s the guy who was defamed and sued Twitter.  People don’t often consider the non-legal reasons for using legal institutions.  My money’s on this being about the publicity.

We’re leaving now, so all aboard… Why would newspapers report a Twitter scandal?

Each Saturday, I walk into Civic in order to buy my stack of newspapers: Canberra Times, Sydney Morning Herald, The Australian.  Each Saturday, I end up with a mound of sections which I won’t read either because I’m thoroughly disinterested (Drive, for example) or because it is a billion times more efficient to source the information online (My Career, classified, &c.).

Newspapers have the advantage of being able to provide a calm, reflective, stable version of the news.  Where online media outlets scramble to be ‘first’, giving a few details as they trickle in from various sources, newspapers can provide the richer, fuller, broader story.  This is the trade-off we make with newspapers: the news is at least six hours old, but it’s deep and fulsome news.

I find it increasingly difficult to make that argument with a straight face.  While this might have been the case a few years ago, the quality of the news in newspapers has deteriorated.  There have been a number of stories which literally did not make any sense unless you’d been aware of the background online.

And this weekend we had the final kick in the guts from the newspapers: vast coverage of Weiner’s weiner.

Why, in the name of all that is holy and sane, would we look to a newspaper to tell us about something trivial that happened online?  It’s so batshit insane that my face contorted when I read it.  Why would this be here?  Why is the internet infecting my newspapers?

The idea of newspapers as a journal of record is antiquated.  There are two reasons to read a newspaper.

The first is long-form investigative journalism.  All the short ‘factoid’ articles about who said what and what’s doing who have been outclassed by the internet.  Buying articles from other sources has been a staple part of the newspaper diet since at least the 1930s.  Now, a lot of the stories are just collations of online material: press releases, social media stunts, &c.  While it’s cheap, it’s clogging up space for investigative journalism which is far more likely to attract readers into buying papers (or pay-walled content, if managed properly).

The second is high quality opinion and analysis.  I would gladly pay my eight dollars a week in return for reasoned and logical debate.  Far too often, we’re getting the self-important waffling of people who can barely string together sentences.  In the Sydney Morning Herald two weeks ago, Lenore Taylor wrote a piece that was painful to read.  It wasn’t because the ideas were stupid, but because it was riddled with tortured prose, run-on sentences, and paragraphs which had nothing to do with the argument.  I half suspected Amanda Vanstone was ghostwriting for her.

When I talk to people about this issue, people say that they want unbiased reporting of facts.  I disagree.  While brute facts might be unbiased, the sheer process of putting them into language causes bias.  People from both the left and the right wings of politics read factual material and claim bias against them.  The way to avoid this is to have analysis from both ‘sides’ of the debate, calming and rationally discussing agreed facts.  This would work in Australia, if not for one thing:

We don’t have a non-partisan right wing.

There are very few conservatives left in Australia.  We’ve been strangled out of the debate by neo-cons who, come hell or high water, back the Coalition.  It doesn’t matter what the Coalition says, neo-cons think they’re correct.  It also doesn’t matter who’s leading the Coalition: when Turnbull was leading the meta-party, there was significantly less vitriol spewing out about global warming being a sham.  Why?  Because the right wing media was echoing Turnbull’s talking points of the day.

More left wing papers, on the other hand, are less likely to be partisan (although they routinely give free passes to the Greens).  Left wing papers are more likely to criticise both the ALP and the Coalition, while right wing papers are less likely to criticise the Coalition.

Newspapers should get their noses out of Twitter scandal sludge and hours-old ‘news’, and get back into the game of reasoned, rational argument.  For that to happen, we’ve got to find right wing voices which are more than echoes of Coalition scaremongering.  Good luck.