Trolls, threats, the law and deterrence…

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“Internet trolls face up to two years in jail under new laws” screamed the headline on the BBC’s website yesterday, after Chris Grayling decided to “take a stand against a baying cyber-mob”. It’s not the first time that so-called ‘trolls’ have been made the subject of a government ‘stand’ – and a media furore. This particular one arose after TV presenter Chloë Madeley suffered online abuse – that abuse itself triggered by the comments about rape made by her mother, Judy Finnigan, also a TV presenter, on Loose Women.

Twitter ‘trolls’ seem to be a big theme at the moment. Just a few weeks ago we had the tragic case of Brenda Leyland, who it appears committed suicide after being doorstepped by Sky News, accused of ‘trolling’ the parents of Madeleine McCann. A month ago, Peter Nunn was jailed for 18 weeks after a series of abusive tweets aimed at MP Stella Creasy. There are others – not forgetting the ongoing saga of GamerGate (one of my favourite posts on this is here), though that seems to be far bigger news in the US than it is here in the UK. The idea of a troll isn’t something new, and it doesn’t seem to be going away. Nothing’s very clear, though – and what I’ve set out below is very much my personal view.

What is a troll?

There’s still doubt about where the term comes from. It’s not clear that it refers to the kind of beast in the picture above – from the weirdly wonderful Norwegian film ‘Trollhunter’. A few years ago, I was certain it came from a totally different source – ‘trolling’, a kind of fishing where you trail a baited line behind your boat as you row, hoping that some fish comes along and bites it – but I understand now that even that’s in doubt. Most people think of monsters – perhaps hiding under bridges, ready to be knocked off them by billy goats, or perhaps huge, stupid Tolkeinian hulks – but what they are on the internet seems very contentious. In the old days, again, trolls were often essentially harmless – teasing, annoying, trying to get a rise out of people. The kind of thing that I might do on twitter by writing a poem about UKIP, for example – but what happens now can be quite different. The level of nastiness can get seriously extreme – from simple abuse to graphic threats of rape and murder. The threats can be truly hideous – and, from my perspective at least, if you haven’t been a victim of this kind of thing, it’s not possible to really understand what it’s like. I’ve seen some of the tweets – but only a tiny fraction, and I know that what I’ve seen is far from the worst.

The law

The first thing to say is that Grayling’s announcement doesn’t actually seem to be anything new: the ‘quadrupling of sentences’ was brought in in March this year, as an amendment to the Malicious Communications Act 1988.  This is just one of a number of laws that could apply to some of the activities that are described as ‘trolling’. Section 127 of the Communications Act 2003 is another, which includes the provision that a person is guilty of an offence if he: “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.  The infamous ‘Twitter Joke Trial’ of Paul Chambers was under this Act. There have also been convictions for social media posting under the Public Order Act 1986 Section 4A, which makes it an offence to “…with intent to cause a person harassment, alarm or distress…  use[s] threatening, abusive or insulting words or behaviour, or disorderly behaviour, or …displays any writing, sign or other visible representation which is threatening, abusive or insulting,” Then there’s the Protection from Harassment Act 1997, and potentially Defamation Law too (though that’s civil rather than criminal law).  The law does apply to the internet, and plenty of so-called ‘trolls’ have been prosecuted – and indeed jailed.

What is a threat?

One of the most common reactions that I’ve seen when these issues come up is to say that ‘threats’ should be criminalised, but ‘offensive language’ should not. It’s quite right that freedom of speech should include the freedom to be offensive – if we only allow speech that we agree with, that’s not freedom of speech at all. The problem is that it’s not always possible to tell what is a threat and what is just an offensive opinion – or even a joke. If we think jokes are ‘OK’, then people who really are threatening and offensive will try to say that what they said was just a joke – Peter Nunn did so about his tweets to Stella Creasy. If we try to set rules about what is an opinion and what is a threat, we may find that those who want to threaten couch their language in a way that makes it possible to argue that it’s an opinion.

For example, tweeting to someone that you’re going to rape and murder them is clearly a threat, but tweeting to a celebrity who’s had naked pictures leaked onto the internet that ‘celebrities who take naked pictures of themselves deserve to be raped’ could, potentially, be argued to be an opinion, however offensive. And yet it would almost certainly actually be a threat. A little ‘cleverness’ with language can mask a hideous threat – a threat with every bit as nasty an effect on the person receiving it. It’s not just the words, it’s the context, it’s the intent. It’s whether it’s part of a concerted campaign – or a spontaneous twitter storm.

One person’s troll is another person’s freedom fighter…

The other thing that’s often missed here is that many (perhaps most) so-called trolls wouldn’t consider themselves to be trolls. Indeed, quite the opposite. A quick glance at GamerGate shows that: many of those involved think they’re fighting for survival against forces of oppression. There’s the same story elsewhere: those involved in the so-called ‘trolling’ of the McCanns would (and do) say that they’re campaigning to expose a miscarriage of justice, to fight on behalf of a dead child. Whether someone’s a terrorist or a freedom fighter can depend on the perspective – and that means that laws presented in terms like those used by Grayling used are even less likely to have any kind of deterrent effect. If you don’t consider yourself a troll, why would a law against trolls have any impact?

Whether increasing sentences has any deterrent effect to start with is also deeply questionable. Do those ‘trolling’ even consider the possible sentence? Do they know that what they’re doing is against the law – even with the many laws enumerated above, and the series of convictions under them, many seem to think that the law doesn’t really apply on the internet. Many believe (falsely) that their ‘anonymity’ will protect them – despite the evidence that it won’t. It’s hard to see that sentences are likely to make any real difference at all to ‘trolling’.

There are no silver bullets…

The problem is, that there really isn’t a simple answer to the various things that are labelled ‘trolling’. A change in law won’t make the difference on its own. A change in technology won’t make a difference on its own – those who think that better enforcement by Twitter themselves will make everything OK are sadly far too optimistic. What’s more, any tools – legal or technological – can be used by the wrong people in the wrong way as well as by the right people in the right way. Put in a better abuse reporting system and the ‘trolls’ themselves will use it to report their erstwhile ‘victims’ for abuse. What used to be called ‘flame wars’ where two sides of an argument continually accuse the others of abuse still exist. Laws will be misused – the Twitter Joke Trial is just one example of the prosecutors really missing the point.

There is no simple ‘right’ answer. The various problems lumped together under the vague and misleading term ‘trolling’ are complex societal problems – so solving them is a complex process. Making the law work better is one tiny part – and that doesn’t mean just making it harsher. Indeed, my suspicion is that the kind of pronouncement that Chris Grayling made is likely to make things worse, not better: it doesn’t help understanding at all, and understanding is the most important thing. If we don’t know what we mean by the term ‘troll’, and we don’t understand why people do it, how can we solve – or at least reduce – the problems that arise?

Posturing – and obscuring

The thing is, I’m not convinced that the politicians necessarily even want to solve these problems. Internet trolls are very convenient villains – they’re scary, they’re hidden, they’re dangerous, they’re new, they’re nasty. It’s very easy for the fog of fear to be built up very quickly when internet trolling comes up as a subject. Judy Finnigan’s original (and in my view deeply offensive) remarks about Ched Evans’ rape conviction have been hidden under this troll-fog. Trolls make a nice soundbite, a nice headline - and they’re in some ways classical ‘folk devils’ upon which to focus anger and hate. Brenda Leyland’s death was a stark reminder of how serious this can get. A little more perspective, a little more intelligence and a little less posturing could really help here.

In praise of pseudonyms…

A remarkably inappropriately titled article appeared in the Telegraph this morning.

“Facebook will soon let you post using someone else’s name”

The article itself, however, said something quite different: that ‘Facebook is reportedly working on a mobile app that will let its users interact without using their real name’. If true, this could be important – and a very positive move. Facebook have long been the champions of ‘real names’ policies: for them to recognise that there are important benefits that arise from the use of pseudonymity and sometimes anonymity is a big development – because there are benefits, and pseudonymity is one of the keys to real freedom of speech and autonomy, both online and in the ‘real’ world.

Firstly, to dispose of the Telegraph’s appalling headline, a pseudonym is very rarely ‘someone else’s name’. There are cases where people try to impersonate others, but these are a tiny fraction of the times that people use pseudonyms. Pseudonyms have been used for a very long time, and for very good reasons. Many people are better known for their pseudonyms than for their ‘real’ names – and they certainly didn’t ‘steal’ them. Did Eric Blair steal the name George Orwell? Did Mary Ann Evans steal the name ‘George Eliot’? Did Gideon Osborne steal the name George? And looking at the first two of those names, did Orwell and Eliot, ‘belong’ to someone else? Of course they don’t. Another George even springs to mind: George Osborne. Should we inset on calling him Gideon, because that was the name his parents gave him? I’m politically opposed to him in every way – but I’d defend his right to call himself George, and defend it to the hilt. Pseudonyms often belong to the people using them every bit as much as their ‘real’ names. In some ways they’re even more representative of the people: when choosing a pseudonym, people often put a lot of thought into the process, choosing something that represents them in some way, or represents some aspect of them.

Sometimes it’s about presentation – and sometimes it’s to protect your ‘real’ identity in an entirely reasonable way. It’s not that you have something to hide – but that your autonomy is better served by the ability to separate your life in some ways. Without that ability, your freedom of expression is chilled. As I’ve written before, there are many kinds of people for whom pseudonymity is crucial: whistle-blowers, people whose positions of responsibility make open speech difficult, people with problematic pasts, people with enemies, people in vulnerable positions, people living under oppressive regimes, young people, people with names that identify their ethnicity or religion, women (at times), victims of spousal abuse and others. It’s also something that helps people to let of steam, to explore different aspects of their lives – or simply to enjoy themselves.

I use my real name most of the time online – amongst other things because my ‘online presence’ is part of my job, an because I make professional links and connections here – but I’m in a privileged position, without any of the obvious vulnerabilities. I’m a white, middle-class, middle-aged, educated, employed, able-bodied, heterosexual, married man. It’s easier for me to function online with my real name – but even I don’t always do so. Over the last decade or so I’ve used a number of pseudonyms, and still use one now. For many years my main online presence was as ‘SpiritualWolf’, prowling the football message boards: I’m a Wolves fan. I didn’t particularly want to connect what I was doing on the football boards with my work life or even my home life – and wanted my football postings to be judged for their content, not on the basis of who I might be. Online life works like that. I created ‘SpiritualWolf’ – but I also was SpiritualWolf. It wasn’t someone else’s name – it was my name.

Even now I used a pseudonym – KipperNick – when I play at being the BBC’s Nick Robinson, in his role as cheerleader for UKIP, a role which, sadly, he often plays better than me. It’s a very different kind of identity – a clearly marked parody account – but it allows me a certain kind of freedom, and lets me have some fun. I don’t use it maliciously – at least I don’t try to….

…and that, in the end, is the rub. It’s not the pseudonymity that’s the problem when we’re looking at malicious communications, for example: it’s the malice. By attacking the pseudonyms we’re not just missing the target we’re potentially shutting off a great deal of freedom, chilling speech and controlling people when that control is really unnecessary. I’m delighted that Facebook has begun to realise this – though I’ll believe it when I see it.

 

Thanks to the many people who replied to my initial tweet about this earlier today – I’ve shamelessly used your examples in the blog post!

What makes journalists special?

The news that the Sun were supporting an application to the European Court of Human Rights over the Met’s gathering of the communications data of the Sun’s political editor, was greeted with more than a few raised eyebrows. The levels of irony and hypocrisy here are almost magnificent in their chutzpah. The Sun, central to a Murdoch empire that has been mired in scandals over phone-tapping, furious at one of their own having his phone calls (and more, to be fair) looked at – the communications data surrounding them at least. The Sun, whose close links to the Met were a part of the whole scandal that brought about the Leveson Inquiry, calling the Met out for unethical procedure. The Sun, who just days before had been railing against the whole European Human Rights regime, and the court itself, trying to use those very rights to defend themselves.

Despite this, and despite my dislike of the Sun, I, and many others, would support the Sun in their action. Journalists do need protection from surveillance. They do need privacy. They do need to be able to protect their sources. As the Sun said:

“A free press is fundamental to all of our other freedoms. And to have a free press reporters need to be able to protect the identity of their sources.”

It’s a bold statement and one worth further examination. The role of the ‘free press’ can sometimes be understated, particularly when we look at the excesses of the current crop of tabloids. Anyone who followed the Leveson Inquiry knows quite how badly the press can and do behave. Desperate, despicable stuff at times – cruel, selfish, manipulative, voyeuristic, racist, sexist, homophobic, transphobic, divisive, misleading (or worse), doing their best to bring out the worst in people. Just plain nasty in so many ways – but that should not blind us to the importance of at least something of a free press. Without the press, things like the MPs expenses scandal would never have come to light. Without the press, Edward Snowden would have found it far harder to get his information out – and would have been far less likely to be believed. There are many more stories like this – too many to count.

So a free press is important – and for that reason, the press get privileges. They do get – and might well deserve, though more of that later – better protection for privacy and confidentiality. They get more access to information – through briefings from politicians and others or from ‘press-only’ events, through networks of sources and supporters and so forth. They have an audience that ‘ordinary’ people find it very difficult to reach. They have even had specific legal protections – against defamation, for example, in what used to be known as the ‘Reynolds Defence’, though since the Defamation Act 2013 came along, that has broadened a little so as to be potentially accessible to non-journalists.

All this has historically been entirely right and proper – but there’s something of a deal going on here. Why should journalists get special protection, above and beyond that of ordinary people? What makes the ‘professional’ journalist special – and different from that increasingly common species, the ‘citizen journalist’? What makes a columnist in a newspaper different from a blogger? The unspoken deal was, just as with lawyers and doctors (and even priests) who also make claim to special rules on confidentiality, journalists were bound by different ethics, and had been properly and professionally trained so they could be more trusted – at least to do things like protect their sources. Journalists get protection, and in turn they protect us – and they need to behave ethically in response. Just as lawyers and doctors have ethical guides (which they may or may not follow) press journalists have their own ethical guides. In the past, as far as UK press journalists were concerned, this was the Code of Practice of the Press Complaints Commission – what it is now is still up in the air, and the new regulator IPSO tries to assert itself whilst the supporters of the Royal Charter try to bring about implementation of the Leveson Report. Either way, most journalists would claim that they have ethics.

The real question, then, is whether they follow these ethics – because if they don’t, there’s far less to differentiate them from the rest of us. I write a blog, have had a few pieces published in magazines and on newspapers’ websites – am I a journalist? Should I have the same rights as journalists do? My suspicion is that the lines between ‘real’ journalists and ‘citizen’ journalists, bloggers and so forth will if anything get more blurred. There are already many people on the borderlines, many who sometimes act as journalists, other times as bloggers and so forth. Where does that leave journalistic ethics, and where does that leave journalistic protections for privacy, freedom of expression and so forth?

There are two very different possible approaches. One is to strip away journalistic protections – the other is to broaden them to cover the rest of us too. Personally, I much prefer the latter. Now that technology has given us the capacity to exercise our freedom of expression, the law should help protect our ability to do so. I may not be a journalist, but I do want confidentiality, and I think I have the right to it.

In the meantime, though, we should rally behind journalists in their fight against intrusion. We should, however, also expect them to understand the deal that is going on - and to understand that the pressure is on them to behave more ethically. The less ethically they behave, the less responsibly they behave, the harder it is to justify a special deal. One particularly painful story this week has made this point to me: the death of Brenda Leyland, the women accused of being a ‘Twitter Troll’ towards the parents of Madeleine McCann. This is a story that has almost nothing good to be said about it. What actually constitutes a ‘troll’ is subject to a great deal of doubt, and even if some kind of definition is settled upon, whether Brenda Leyland fits it is another matter. These are complex questions. For better or worse, the law has been getting increasingly involved in activity on social media, whether for malicious communications, bullying, public order offences or defamation – and as the number of people participating in social media has grown, the incidents have similarly grown.

I’m not in any way a defender of ‘trolling’ – but neither am I a supporter of ‘counter-trolling’. Trolling the trolls does go on – and on my Twitter timeline (I follow a lot of people) I’ve seen people make deeply passionate arguments both in favour of the McCanns and defending Brenda Leyland and others. I don’t want to get into that argument – other than to say that I don’t know what happened to Madeleine McCann, and I’m a believer in the presumption of innocence – but the actions of the press, and Sky News in particular, are another matter. We don’t necessarily expect ordinary people on Twitter to behave responsibly, let alone to a special, higher standard of ethics and responsibility. We should, however, have higher expectations of the press. That’s part of the deal. Was the doorstepping of Brenda Leyland appropriate, ethical or well considered? Was it necessary? I hope Sky News is considering these questions – because press ethics matter, just as protection of the press matters. We need a free press – but we need a responsible press too.

 

UPDATED TO MAKE CLEAR THAT IT WAS TOM NEWTON DUNN’S COMMS DATA GATHERED BY THE POLICE, NOT HIS CALLS LISTENED TO.

The Ballad of Google Spain

For National Poetry Day, with apologies to anyone with any sense of poetry….

 

There was a case, called ‘Google Spain’

That caused us all no end of pain

Do we have a right to be forgotten?

Are Google’s profits a touch ill-gotten?

 

From over the pond came shouts of ‘Free Speech!’

So loud and so shrill they were almost a screech

From the ECJ came a bit of a gloat

‘We’ve got that Google by the throat!’

 

Said Google “If it’s games you play”

“We’ll do that too, all night and day”

So they blocked and blocked, and told the press

“It’s that evil court, we’re so distressed”

 

“Such censorship,” they cried and cried

Though ’twas themselves who did the deeds

They didn’t need to block the links

They were just engaging in hijinks

 

And many stood beside them proudly

Shouting ‘freedom’, oh so loudly

‘Google is our free-speech hero!’

‘We’ll fight with them, let’s be clear-oh!’

 

Others watched and raised their eyebrows

Listening wryly to these vows

And thought ‘is Google really pure?’

‘From what we’ve seen, we’re far less sure.’

 

For Google blocks all kinds of sites

‘Specially for those with copyright

And, you know, this isn’t funny,

When blocking things will make them money

 

This isn’t just about free speech

No matter how much Google preach

What matters here is really power

Is this truly Google’s hour?

 

Does Google have complete control

Or do the law courts have a role?

Time will tell – but on the way

Our privacy will have to pay…

 

 

 

 

 

 

Censorship and surveillance…

Today’s ‘Internet Injunctions’ case in the high court (Cartier vs BSkyB) highlights one of the inherent problems with the kind of ‘porn-blocking’ censorship system that the current government has effectively forced ISPs to comply with: when you build a censorship system for one purpose, you can be pretty certain that it will be used for other purposes. As David Allen Green, who tweets as @JackofKent described it today:

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I’ve argued this before – it’s question five in my ‘10 Questions about Cameron’s ‘new’ porn-blocking‘, but here it is in action, being argued in court. It was inevitable that it was going to be argued. Though people tend to deny it, ‘function creep’ or ‘mission creep’ is a reality, not a dream of the paranoid tin-foil hat brigade.

It’s not an argument restricted to censorship systems – the same applies to surveillance, and should remind us of the links between the two, and the need to oppose both. Just as advocates of censorship start with child-abuse imagery and then move on through ‘ordinary’ porn to other kinds of ‘offensive’ material, and then to copyright infringement, advocates of surveillance start with catching terrorists and paedophiles, through catching more ‘ordinary’ criminals, to finding people who are ‘offensive’ in some other way, through to those suspected (and it is generally based on suspicion, not proof) of infringing copyright. And from there, who knows where?

The links between surveillance and censorship are strong and multifaceted – though the motivation, in the end, is the same: control over people and restriction of freedom. Surveillance can be used to support censorship – watch everyone to see where they’re going, what they’re watching and reading, who they’re meeting, so that you can shut down their websites, close their meetings, track down the people they’re listening to, and so forth. Censorship can be used to support surveillance – particularly with things like the current ‘opt-out’ internet filters, where if you opt-out of censorship, that automatically makes you suspicious, and a target for surveillance. Anyone using a pseudonym, or trying to be anonymous, is already marked down as suspicious – anyone using TOR or an equivalent, for example.

This is one of the many reasons we should reject both censorship and surveillance. We should understand that the two are linked – and that there are slippery slopes associated with both. And they really are slippery, as today’s case in the High Court should help us to see.

For more details of the case, see David Allen Green’s piece for the Open Rights Group here, and the Open Rights Group press release here.

The right be forgotten roadshow – and the power of Google.

Screen Shot 2014-09-16 at 20.39.49I read with interest Professor Luciano Floridi’s report from the first two legs of what the Guardian described as ‘Google’s privacy ethics tour of Europe’. Floridi is Professor of Philosophy and Ethics of Information at the Oxford Internet Institute, and one of the experts appointed by Google to its ‘Advisory Council’ on the right to be forgotten.

As would be expected from such an expert, it is a well crafted report and explains very well some of the key ethical questions being addressed through this public consultation. As Floridi puts it:

“The two words most frequently used by all participants in the meetings were “complex” and “balance”, and they describe the situation well. The debate is complex because there are many elements interacting with each other.

The actual ruling, with its pro and contra, including its inconsistency with the advocate-general’s opinion; the role of search engines as intermediaries or data controllers; the difference between availability and accessibility of information online; the so-called rights (to be forgotten, to information), the real rights behind them (privacy and freedom of expression), and the ways in which they are interpreted on the two sides of the Atlantic; the concepts of relevance and of public interest, both very slippery; the procedural uncertainty about who should decide which links are rightfully removed and who should be informed about it.”

There is one element, however, conspicuous by its absence from Floridi’s analysis: a consideration of the power of Google. That power is considerable, and wielded in many different ways. Indeed, it could be said that the power of Google is at the heart of the whole debate over the right to be forgotten, and without taking it properly into account it will be impossible to come to sensible, practical and effective conclusions over how to deal with the right to be forgotten.

Power over what is found – and not found

The reason behind the Google Spain ruling, to start with, was connected with the power that Google wields: ‘Googling’ someone is probably the most important way to find out information about a person. The Spanish man about whom the ruling was concerned felt that when he was Googled the information was misleading and unfair. Google is at the heart of things: how they set their algorithms, how they index the web, what they include and exclude, what they rate highly – and what they rate as insignificant – matters in ways that are often hugely underestimated. And yet, if you read a lot of commentary – even the expert commentary of Professor Floridi – it seems as though Google are a mere conduit, their algorithm organic and their results generated purely in the interests of freedom of expression. If it’s interesting and relevant, those algorithms will find it for you. Google, in this view, are a purely neutral organisation, providing a service to the planet.

That’s a deeply naive assumption. Google is a business – and like all businesses, its bottom line is the bottom line. Google will do what is best for Google as a business. That may often turn out to be what serves freedom of expression best – if we can’t find what we need to find by using Google, we’ll find another way – but sometimes it won’t be. Google takes down masses of links on the basis of copyright claims – because its interests are best served by complying with the law of copyright and by keeping cordial relations with the rights-holders. That’s an infringement of freedom of expression – but in the eyes of the law and the eyes of Google, an acceptable one. Google doesn’t link to child abuse images – and quite rightly so – but that’s also an infringement of freedom of expression. Google complies with local laws and other considerations as and when Google finds it appropriate to do so – and there’s absolutely nothing wrong with that approach. Indeed, it’s an entirely appropriate approach – but it means that casting Google as the great champion of freedom of expression is only telling part of the story.

Power to set the agenda

The second aspect of power that needs to be taken into account is Google’s power to control the process and indeed to set the agenda. This whole roadshow was set up by Google – the advisory council was set up by Google, where they visit and when, who is called to give evidence, what the agenda of their meetings are and so forth is all, directly or indirectly controlled by Google. Again, there’s nothing wrong with this, and in some ways it’s entirely appropriate, but it does mean that it should be viewed in that context. This isn’t some neutral, independent body making an academic analysis of the ethics of the right to be forgotten – it’s a Google appointed body, somewhat akin to a board of trustees, taking soundings on Google’s terms. They wouldn’t have been appointed if they weren’t either predisposed to be on Google’s side, or at least seen to be malleable. It also reflects an apparent tactic that Google has employed in the internet governance and regulation space more generally. By giving individuals with high personal reputation positions of importance, flying them on private jets, and generally treating them like royalty, Google creates powerful external allies. Google’s eight experts are already acting in some ways as though they were more expert than the DPAs and other European organs: it gives Google a chance to blend its choices between the best of a set of alternatives. The DPAs do, at least, appear to have noticed this.

Google seems to have been setting the agenda over the reporting of the right to be forgotten since the day it came out – many (including myself) have wondered whether Google has been deliberately overreacting to the ruling, deleting links to stories when they really didn’t have to, to try to make the ruling look ridiculous. Those stories began very shortly after the ruling, but they continue to this day – the most recent being the story that links to a positive story about an artist being removed seemingly at the artist’s desire. It’s a deeply unconvincing story, and generally couched in terms that misunderstand the ruling. Suggestions that Google was ‘forced’ to remove the link are quite wrong: a request is made, and then Google can decide to delete or not to delete – deletions being if the information is old or irrelevant – and if they choose not to, the requester can either take legal action or ask the data protection authority to adjudicated. Even in the Guardian, which really should know better, it was suggested that “Google was required to enact the court’s decision”. No. Google was not required to do so. They could, and on the face of it they should, have refused to do so. If they were really the guardians of freedom of expression, they would have – but there are wheels within wheels here, and making the ruling look ridiculous seems, again, at least on the face of it, to matter more to them.

Power in other ways

Google’s immense resources mean that it can wield its power in many more ways. Lobbying, both open and hidden, is a big deal – the amount of effort put into shaping the reform of the data protection regime so it suits Google better has been colossal. Current and ex-Googlers are now in the House of Lords (Joanna Shields, appointed by David Cameron in August, used to run Google’s Europe division) and in the White House (Megan Smith, Google VP for Development is Obama’s new Chief Technology Officer and senior technology advisor, appointed earlier this month). Google provides funding to think tanks, and to academic organisations – indeed, they’re one of the biggest funders in these areas. Though this funding is given without strings attached, it is hard not to feel that there is at least some influence on the subjects that are researched, and the terms on which they are researched. No-one bites the hand that feeds them without at least thinking about it. Google has a critical role to play in how technology functions, how businesses function – and in how the media functions. The media in particular sometimes seems far less critical of Google than it might be – except in terms of its taxation policies.

None of this should detract from the way that Google does provide great products – and that things like its search engine do provide a huge amount of help for freedom of expression and so forth. That, however, should not prevent us from seeing the impact of the power that it wields – and taking that power into account when looking at things like privacy and freedom of expression. When trying, as Professor Floridi says, to find the right balance, with all those complex factors to deal with, that power must be taken into account. If it isn’t, that balance will never be found.

 

 

 

Who needs privacy? All of us….

A couple of privacy stories have been making big news over the last few days. The first is the ‘celebrity photo’ saga – naked photos of Jennifer Lawrence and others have been ‘leaked’ onto the net. The second is the revelation that the Metropolitan Police obtained the telephone records of Tom Newton Dunn, the political editor of the Sun, in connection with the ‘Plebgate’ saga. Between them, the two stories highlight some of the ways in which privacy matters – and at the same time some of the misunderstandings, some of the hypocrisy, and some of the complexity of privacy.

Celebrities and privacy

The relationship between celebrities and privacy is a complex one. At one level – the level usually argued by the press (including the Sun) – celebrities have less of a right to privacy than the rest of us. After all, they put themselves in the public eye. They open their doors to the likes of Hello magazine – and they make millions from us, from our attention, so doesn’t that mean they have to sacrifice a bit of their privacy to us? The put themselves in the public eye – doesn’t that mean their lives are ‘public’, and drawing attention to them is in the ‘public interest’? This brings into play the classic question of what the difference is between what ‘interests the public’ and what is ‘in the public interest’. They’re certainly not identical – but there is a degree of fuzziness at times.

At another level – the level argued by the celebrities themselves – celebrities need more protection, and if not a stronger right of privacy then a stronger way to enforce that right than the rest of us. After all, celebrities are more likely to have their private lives intruded upon by the press. Paparazzi will point their long lenses into celebrity houses, pursue celebrities down the street, rifle through celebrities’ dustbins, much more than they will for the rest of us. A naked picture of Jennifer Lawrence will get a lot more clicks on the net than a naked picture of a ‘non-celebrity’. The phone hacking saga (of which more later) is just one example – and it’s no coincidence that many of those at the forefront of the campaign to implement the Leveson report are celebrities such as Hugh Grant and Steve Coogan.

There’s strength in both perspectives – and as both are regularly argued by people who are both articulate and very ‘media-savvy’ it is often hard to navigate between them. The courts try – but all too often, whatever they decide is damned by one side or the other.

The Press and Privacy

The Sun are justifiably angry about the revelation that their political editor’s phone records have been accessed by the Metropolitan Police – not least because the story being investigated actually concerned the activities of the police. There are conflicts of interest all over the place here – but also a much bigger point.

For the press to function well, it needs to have privacy. That is, it needs to be possible for the press to keep its sources secret, to protect those people who reveal the key information. If they can’t protect their sources, there’s a very direct chilling effect – people who might come forward with information will be afraid to do so, so that information will never be uncovered, and all kinds of stories that are very much in the public interest will never see the light of day. Members of the press need to have confidentiality – so that they are able to do their job, a critical job in holding the powerful to account. That means the police and the politicians for a start.

Hypocrisy and Privacy

And yet, the stench of hypocrisy is almost overwhelming here. This is the Sun, getting outraged about a breach in privacy. The same Sun who were part of the phone hacking saga, who regularly invade the privacy of all and sundry – celebrities are just one example – often claiming it is in the public interest, but still invading privacy.  The same Sun who were part of an often vicious onslaught on the Guardian in connection with the Snowden revelations. The Sun who often seem to operate as though no-one has any right to privacy – except their own journalists.

This kind of hypocrisy is matched by that of some of the hackers and champions of internet freedom who feel it’s OK to obtain and then release, gleefully, naked pictures of Jennifer Lawrence. Some seem to want their own anonymity and privacy, and think the NSA and GCHQ are nightmarish oppressors – but think that Jennifer Lawrence only has herself to blame for even having those photographs in the first place.

It’s a sadly common set of double standards – privacy doesn’t seem very important, indeed it often seems like something bad (‘privacy is for paedos’, in the words of Paul McMullan, former News of the World journalist) until it has an impact on you. The Sun’s outrage is particularly hypocritical, but at times almost all of us are guilty of it.

We all need privacy

The truth, at least as I see it, is that we all need privacy. We all need our privacy protected – and invasions of privacy should never be done lightly, without a thought for the consequences. Jennifer Lawrence – and all of us – should be able to take whatever photos we want of ourselves, however intimate. Members of the press should be able to communicate safely and securely with their sources. And we, ordinary people, should be able to go on with our ordinary lives without fear of their being exposed. Our lives aren’t any less important than those of celebrities or the press – and though the impact of privacy invasions on our ordinary lives may not be as earth shattering or newsworthy as those of celebrities, politicians and so forth, to us they matter. The revelation that NSA operatives thought looking at nude and sexual photos found by surveillance was fun, and sharing them with colleagues was just a perk of the job should repel us.

There are many other ways that invasions of our privacy have an impact upon us – things like affecting our job prospects, our insurance premiums, our credit ratings, our relationships – but there’s a bigger point here. These are our lives. This is part of our human dignity. Privacy is part of that, and it matters.  We should try to remember that for other people – and celebrities are people too.