Tag Archives: hate speech

Anti-social racism in social media is unwise and illegal

By MARK PEARSON

Two recent cases stand out as examples where racist commentary has landed online writers in legal trouble.

The first was in the UK where a student was jailed for 56 days for Tweeting offensive remarks about a stricken footballer.

Another was in Australia where a Federal Court judge fined the News Limited website PerthNow $12,000 over comments posted by readers to its website featuring racial abuse of four indigenous teenagers who died in a stolen car. It reinforces the Australian law that you are legally responsible for the moderated comments of others on your social media or web sites.

I take up the issue of discriminatory abuse in my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online.

The chapter is titled ‘The fine line between opinion and bigotry’. Here’s a short excerpt:

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The fine line between opinion and bigotry

Sadly, human beings have found the negative energy to hate each other since time immemorial. Hatred of one form or another explains most of the wars and acts of violence throughout history. While the Internet and social media has allowed us to communicate with countless new friends and form all kinds of new professional and personal relationships, we do not just attract the attention of the ‘like-minded’.

There is a war going on in our pockets and handbags in each and every smartphone and on every home computer connected to the Internet. There are people so possessed with hatred and revenge that they are conducting a cyberwar on the objects of their disdain.

No matter who you are and where you live, there are others who might not know you personally but hate you for the category of human being you are: black, white, Asian, Hispanic, male, female, gay, straight, conservative, liberal, environmentalist, climate change denier, Muslim, Jew, Christian, obese, American, British, Pakistani, teenager, rich, poor, lawyer, politician or used car salesman. (Lucky there’s not a ‘hate’ button on Facebook, hey?)

Sometimes even some fun turns sour. A satirical swipe at redheads on the Simpsons television series prompted a 14-year-old Canadian boy to set up a Facebook ‘Kick a Ginger’ campaign in 2008, rapidly ‘friended’ by more than 5000 fans. As the Telegraph reported, dozens of children posted comments on the page claiming to have attacked redheads, with a 13-year-old girl from Alberta and her sister among the victims of the schoolyard bullies.

Such people judge you based on the labels they apply to you rather than who you really are or your life experiences that inform your views and values. And they are online and angry.

If you also have strong opinions and express them without fear or favour, your challenge is to avoid becoming one of them. Because if you do, the force of the law in most places can be brought down upon you.

Some individuals just cannot back away from a fight in real life or cyberspace. They become so obsessed with their causes or grudges that they launch poisonous online assaults on others that can leave their targets as traumatised as they would have been if they had been assaulted physically. Tragically, some victims have become so despairing and fearful that they have been driven to take their own lives.

In the eyes of the law, such attacks go under a range of names according to their type, scale, and jurisdiction. They include: cyberbullying, cyberstalking, online trolling, malicious online content, using carriage services to menace, harassment, hate speech, vilification, discrimination and even assault. Some are criminal offences where offenders can be fined or jailed and others are civil wrongs where courts can award damages to victims. Some are litigated under actions we have already considered such as defamation, privacy and breach of confidentiality.

Some are difficult to explain because the motivations are beyond the imagination of ordinary citizens. Australian ‘troll’ Bradley Paul Hampson served 220 days in jail in 2011 for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. He had entered the sites to depict one victim with a penis drawn near their mouth and offensive comments including “Woot I’m Dead” and “Had It Coming”.

At about the same time the US Appeals Court in Virginia was dealing with a suit by former high school senior Kara Kowalski who had been suspended for five days for creating a MySpace page called ‘S.A.S.H’. She claimed it stood for ‘Students Against Sluts Herpes’, but the court found it really aimed to ridicule a fellow student named Shay. She had also incurred a social suspension for 90 days, preventing her from cheerleading and from crowning her successor in the school’s ‘Queen of Charm’ review. Kowalski felt aggrieved at the suspension because she claimed it had violated her constitutional speech and due process rights as it had not happened during a school activity but was really ‘private, out of school speech’. But the court disagreed.

“Kowalski’s role in the ‘S.A.S.H.’ webpage, which was used to ridicule and demean a fellow student, was particularly mean-spirited and hateful,” judge Niemeyer wrote. “The webpage called on classmates, in a pack, to target Shay N., knowing that it would be hurtful and damaging to her ability to sit with other students in class at Musselman High School and have a suitable learning experience.” The court agreed with the school and the trial judge that ‘such harassment and bullying is inappropriate and hurtful’ and denied her damages claim. A ‘Queen of Charm’ indeed!

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print format in Australia and New Zealand (US release in October) and as an ebook elsewhere via Kindle, Google, Kobo and some other providers. [Order details here.]

[Media: Please contact Allen & Unwin direct for any requests for advance copies for review. Contact publicity@allenandunwin.com or call +61 2 8425 0146]

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Why I just wrote my last #LinkedIn recommendation

The trendy online reference seems flawed – both professionally and legally.

By MARK PEARSON

I see it as an important responsibility of my position as a professor to act as a referee for my former students and colleagues when they are job hunting.

I stopped writing formal general references many years ago because the practice seemed to have lost almost all credibility with employers.

Instead, I now agree to be a ‘referee’ and will only write a formal reference when an employer requests one.

But over the past couple of years I have been getting more requests for ‘recommendations’ from my connections on the social-professional network LinkedIn.

Not wanting to offend my former students and colleagues, I have obliged. Until now. I’ve investigated it further and have just written my final LinkedIn recommendation.

There are all the standard HR reasons why such recommendations are not worth a pinch of salt: they are time consuming, too general, and always glowing.

In 2009, Silicon Valley web strategist Jeremiah Owyang described LinkedIn recommendations as ‘puffery’.

“When I see recommendations on LinkedIn, my alarm goes off,” he blogged.

“I know most are not objective.”

LinkedIn responded to his criticisms on their official blog, with Adam Nash highlighting the benefits that can come from recommendations. He claimed the process could be mutually rewarding for the recommender and recommendee.

Perhaps so, but others have explored the employment law issues of the practice.

Employment attorney Shay Zeemer Hable offers a host of reasons why such references are fraught in labor law – with claims of defamation and unfair dismissal heading the list.

“Every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing,” he writes.

“As a result, savvy attorneys will search the Internet for any comment that is inconsistent with the company’s official message about the reason for the termination.

But the area that concerns me most is defamation.

It’s not because of the risk of defaming the person you are recommending. My understanding is that they have to approve your recommendation before posting it, so I can’t imagine someone letting a disparaging comment slip through.

My concern is more with the impact of a glowing LinkedIn recommendation on the defamation defence you need to protect your harsh comments in the real reference you give later.

What happens if you later contradict your original glowing recommendation in your frank verbal or written advice to the employer when they contact you about this person you have recommended?

Australian law provides a strong qualified privilege defence for the negative job reference -restricted to those who have a genuine legal interest in knowing the your truthful opinion about a prospective employee.

But, as the Legal Services Commission of South Australia explains, it requires the ‘publisher’ – he or she who has written the reference – to have acted in good faith and without malice. You also need to believe in the truth of the material you are providing about the individual.

That could be damaged in a major way if the plaintiff can point to your contradictory glowing recommendation on LinkedIn, particularly if it covers the same aspects of their character.

A court would be hard pressed to find you have acted in good faith if you have offered conflicting versions of your opinion about the employee in separate ‘publications’. Exactly when were you giving your honest opinion?

I might be drawing a long bow here – and perhaps some readers can point me to some cases where this has been tested – but for the moment I certainly won’t be writing any more LinkedIn recommendations, and I will be directing my colleagues and students to this blog to read my reasons.

I’d be interested to hear your views.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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First Amendment doesn’t have a passport #law #blogging #media #defamation #censorship

By MARK PEARSON

It might only be 45 words long, but if you are an American journalist, blogger or  social media user you can’t pack the First Amendment in your luggage when you travel abroad.

The famous 14 word portion protecting free expression in the United States – ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – does not travel well when your Web 2.0 material is viewed in foreign lands.

That shouldn’t worry you if you have published within US law and are happy to sit at home in North Dakota or Hawaii tapping away on the device of your choice.

But you should think twice before stepping on an aircraft and touching down in a jurisdiction where there are tougher gags on free expression.

Of course, you don’t have carte blanche at home, either. Even the US draws the line at criminal publications involving prohibited materials like child pornography or engaging in criminal activity such as fraud or terrorism.

But there are many things you can publish on social media or on blogs in America that can trigger lawsuits, harsh fines or jail terms in some countries.

Here are some situations where your First Amendment won’t help out:

  • Hate speech: A US District Court decision in 2011 reinforced the strong protections for angry and inflammatory words under the First Amendment. Judge Lynn Adelman had to consider the free expression rights of neo-Nazi Bill White who was charged over using a website to advocate violence against the ‘enemies’ of white supremacy, including a juror in the trial of a fellow extremist. Judge Adelman allowed his appeal on the grounds that he had not made a direct call to violence against the juror and that White’s speech had First Amendment protection. Judge Adelman explained that the US Constitution ‘…protects vehement, scathing, and offensive criticism of others, including individuals involved in the criminal justice system, such as Juror Hoffman’. He ruled that even speech advocating law-breaking was protected unless it was directed at inciting immediate lawless action and likely to prompt it. The decision sits with earlier Supreme Court hate speech judgments which have found that all but communications integral to criminal conduct – fighting words, threats and solicitations – have free expression protection in America. This is not the case in most other countries, where such comments can see you fined or jailed under laws of blasphemy, vilification or race hate. Australian historical revisionist Fredrick Toben was jailed in Germany for publishing Holocaust denial material on the Internet. In Nigeria, Algeria, Egypt, Tunisia, Sudan and some Middle Eastern countries offenders can be jailed or even executed for blasphemous statements or actions.
  • Immunity for comments of others: In the US, s. 230 of the US Communications Decency Act (1996) gives immunity to anyone hosting the comments of third parties. It states clearly: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Internet service providers (ISPs) and bloggers are protected from actions over material published without their knowledge on sites they host. This is not the case in many other countries. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its accounts in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. The company and its director were fined $7500 each. In the Middle East, anonymous political comments by a blogger on the website of Bashar Al-Sayegh landed the Kuwaiti journalist in jail for three days in 2007.  He was charged with insulting the emir of Kuwait and called upon to explain how he allowed the comments to remain on his site for several hours.
  •  Defamation: Under special US protections, you can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – people like British actor Hugh Grant or New Zealand film-maker Peter Jackson. The strong US defence stems from New York Times v. Sullivan (1964), where the Supreme Court invoked the First Amendment to rule that public officials had to meet tough new tests before they could succeed in a defamation action, even if the allegations were false. In the US, plaintiffs need to prove the falsity of the material, while in the UK and its former colonies the burden is on the publisher to prove the truth of libellous material. ‘Public figures’ in the US also have to prove the publication was malicious before they can win their cases. All this means you face much less chance of libel action in the US over your writing on important public matters, but you need to be careful if you are posting scandalous material about private citizens, particularly if you know the allegations are untrue. Rock icon Courtney Love learned this $430,000 lesson earlier this year. In Canada, the UK and Australia the ‘responsible communication’ or ‘qualified privilege’ defence requires the publisher to demonstrate that they made proper inquiries in the lead-up to their defamatory expose of an issue of public concern, even though they were ultimately unable to prove its truth.
  • Exotic foreign laws: The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech (pdf file): Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so. Even Thailand, a nation with a relatively free and vibrant media, issues lengthy jail terms under its ‘lese majeste’ laws for any material critical of its royal family. Colorado resident Joe Gordon was detained for 84 days in Thailand this year and faces a charge of translating an unauthorised biography critical of the king.

So, what does it all mean for the average American journalist, blogger or microblogger? Quite simply: think before you publish, and think before you travel.

You won’t be extradited and tried by aliens if you keep within the law of your own country. But you should revise your travel itinerary to avoid countries whose governments or citizens may have been offended by your blogs or postings.

If you have been particularly provocative in your writing and you really must travel then consider your other 54 US state and territory jurisdictions or perhaps pack your bags for a Scandinavian vacation. While they don’t have a First Amendment, those countries usually come in well ahead of the US on the Freedom House and RSF free expression rankings.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

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