A headline on the BBC’s website this morning reads:
“Websites to be forced to identify trolls under new measures”
Beneath it, the first sentence says something somewhat different:
“Websites will soon be forced to identify people who have posted defamatory messages online”
It’s interesting that the two ideas are considered equivalent. Are ‘trolls’ those who post defamatory messages online? Are those who post defamatory messages online ‘trolls’? For me, at least, neither of those statements are really true – though of course the idea of a ‘troll’ is something that’s hard to define with any precision. Trolls, for me at least (and I’m a bit of an old hand in internet terms), are people who try to provoke and offend, to get people to ‘bite’ – not necessarily or even particularly regularly through the use of defamation. They use a variety of tactics, from just saying stupid and annoying things to the most direct and offensive – and intimidating – things imaginable. Defamation may indeed be one of their tools, but at best it’s a side issue.
Taking that a step further, the trigger for this appears to have been the Nicola Brookes case (see e.g. here) – which was about bullying, abuse and harassment much more than it was about defamation. Sure, being called a paedophile and a drug-dealer was technically defamatory, but I don’t think defamation was what bothered Nicola Brookes. She wasn’t worrying about her reputation – she was being harassed, even ‘tortured’ in her own words.
It’s not about defamation
So why are the stories about defamation – and why is Ken Clarke suggesting changes to the Defamation Bill to deal with them? Are there other motives here? Is there something quite different going on? I suspect so – and I fear that this may be yet another attempt to use a hideous event to bring in powers that can and will be used for something quite different from that which the event concerns.
We already have the law to deal with trolls and bullies – which is why Nicola Brookes won her case, and why the man who trolled Louise Mensch was convicted, and quite rightly, in my opinion. Harassment and bullying needs dealing with – but we have to be very careful about how we balance things here. Anonymity may sometimes be used to cloak bullies and trolls – but it is also crucial to protect whistleblowers, to protect victims of domestic abuse from being tracked down by their abusers, to enable people to express important and valid opinions without fear of oppression or retribution.
Anonymity matters
This may not appear obvious in a country like ours – but what about in places like China? In Syria? The extremes demonstrate the point – and when situations become more extreme, even ‘liberal’ governments can reveal their authoritarian tendencies. We need to be sure that we don’t set in place the infrastructure – both legal and technical – that allows those authoritarian tendencies to be used too easily. My favourite quote, from the excellent Bruce Schneier, is apt here (again):
“It’s bad civic hygiene to build an infrastructure that can be used to facilitate a police state.” (see his blog here)
Acting to give too many powers (and imposing too many duties) to break anonymity would be a step in this direction – particularly through confusing (intentionally or otherwise) defamation and trolling! We should resist it, and resist it strongly.
Paul Bernal's Blog 
Yes but the police didn’t deal with her case so the harassment and computer misuse act and various other laws designed to protect in such instances were not applied in her case. She was therefore left with no choice but to peruse a civil case at great personal expense which is why she had to go for the defamation angle. That was the only way she could get the court order to reveal the IP addresses. Simply, if the police had bothered to uphold the laws that were there to protect her in the first place and pursued this case on her behalf since she was a victim of a well defined crime this case would never have got so complicated. The reason Louise Mensch was protected in a similar case was because she is a minor celeb and an MP so the police took her more seriously and no doubt worried about bad publicity if they failed to act to protect her. However, Nicola is neither so the police I suspect couldn’t be bothered to protect her and I suppose, hoped she would go away. The poor woman should not have had to go to such lengths and expense to protect herself when the law existed to protect her in the first instance. It’s a disgrace. The police are the problem, not the laws… and you are right BTW we don’t need anymore new ones for the police to ignore. That most certainly is not the solution.
Oh, I do agree – it’s partly that the police don’t understand what’s happening, partly that they don’t take anything online seriously, partly that they don’t take ‘ordinary people’ seriously – and partly that they don’t have the resources to do it. We need to change all four of those: educate the police in understanding the net and taking it seriously, and lobbying to get them to take ordinary people’s rights more seriously.
Darling, you, nail on head, and hitting it all spring to mind. x
Nail on head and you hitting it, spring to mind. x
Thanks! 🙂
If you are not up to date with the “management of online personas” – the latest approved strategy by NSA, CIA, and allied agencies, whereby each of their staff/officers will create up to 10 “believable” online characters with “convincing” background to control online discussions in forums, social media, websites, etc. then do read about it starting here http://www.guardian.co.uk/technology/2011/mar/17/us-spy-operation-social-networks. Now, these are “legal” trolls making the justice system look absolutely ridiculous and obsolete. In fact, the highest authorities rubbish absoltely every letter of the law and their own calls for democracy, ethics, order, law, etc. Everything that US created so far backfired big time, which explains the trend of paranoia, panic, and ultimate destruction. People, commoners, should be more worried about malicious or defamatory trolling by “legitimate” trolls paid by highest authorities to ruin online conversations, diminish any integrity of genuine posters who wish to educate others about matters of shared concern, and so on.
Thanks – I hadn’t seen that story, but it fits perfectly with what we know about the morals and tactics of those kinds of people, and the possibilities available through the net…
If there is ever an example of the BBC not getting it, this is it. Firstly they confuse the two separate cases of Rebekah Brooks (nee Wade) and Nicola Brookes.
Ms Brookes case is criminal under the Protection from Harassment Act 1997. In other words it has nothing to do with defamation. She’ll have to succeed in a criminal prosecution of a troll which won’t be easy and the trolls will have safeguards that any criminal procedure offers them. If the trolling was deemed to be ongoing and viscous, then why are we even looking at this as a computer/internet matter? Give the troll an ASNBO and move on. (Anti social networking behaviour order, by the way, I made that up!) through an normal ASBO.
The second issue related to the proposed legislation that will give hosts a partial defence against defamation claims if they identify anonymous posters. This appears to be a statutory alternative to the NPO procedure, albeit with limited scope. This will need suitable safeguards to protect anonymous or pseudonymous comment.
A while back I got into a twitter argument with a Sky Reporter. Nothing nasty, nor heated. But I did find it very alarming that in the day after this story came out, SKY was complaining about the abuse it gets online. As a corporation has human rights, is it conceivable that SKY would be able to use NPOs to find out the identity of the troll? Considering the abuses certain journalists committed resulting in the Leveson inquiry, how dangerous would it be to have a news organisation like SKY having a court procedure in place that allows for them to reveal the identity of the troll?
Its right that anonymous internet “trolling” is addressed, but the details of this aren’t actually in the Bill. And this makes this bill problematic. It can be viewed here:
http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0005/cbill_2012-20130005_en_2.htm#pb2-l1g5
Clause 5 of the Bill does not address internet trolls, – it relates only to postings or comments that are defamatory, although some allegedly harassing comments will also be defamatory.
It seems that the government needs to do more to enforce existing real world laws. We haven’t even discussed the problems with searching for someones identity by IP address, which I imagine is a whole other kettle of fish…
Thanks – very interesting and spot on about SKY in particular. The confusion of the BBC is quite evident – the question I have is whether the lawmakers and courts will be similarly confused, and we’ll end up with bad law badly enforced.
Paul,
I enjoyed the post. Good points worth considering. There are some issues, as raised above, about laws and how well police pursue these crimes. Like doctors, they need to be trained to spot these crimes and deal with them effectively. It can be very discouraging, but many cities until recently did not have the capacity to deal with cybercrime and left it to FBI. Reading Cuckoo’s Egg showed the gap in US law enforcement in this area.
One point I would take exception with is your reference to the Bruce Schneier’s quotation. I may blog about it more detail on my blog, if I get a chance. It says” “It’s bad civic hygiene to build an infrastructure that can be used to facilitate a police state.”
On the surface, this sounds plausible and has the requisite logic to embed itself as a nice soundbite. However, it masks a deeper fundamental problem, and potential threat, than it suggests on the surface. The origin of the quotation, as you point out, is from his blog post about the use or rather secondary use of US Census information to identify Japanese Americans for internment during WW2. Certainly a shameful period in American history and reflective of a war fever with a large streak of racism. Americans often forget that the Pacific Theatre has very strong racist overtones on both sides of the conflict.
The problem with Shneier’s quotation is this. Any thing a government does can be used in this way. Does this mean we need to get rid of government to have good civic hygiene? If so, is Scheier recommending anarchism? Would it be better if corporations controlled our information, so we had customer numbers? Moreover, the problem is not with government, as such, it is a tool just like any other human creation, that can be used for good or evil depending on the intent and the people behind it. Government, in itself, is not inherently evil or bad.
Further the quotation raises the question of whether privacy is even possible. We see a lot of talk of a post privacy age. What we do not yet have is an age of privacy. By that I mean, all of our identity is based on government data, our births are registered, our names are registered, we national insurance/social insurance numbers, driving licences, and so on. The only other insitution that exists to rival the state is the church and it can offer institutions and identities seperate from and distinct from the state. However, that battle was lost about 1400 so since then the state has been in ascendency. So, do we do away with our own identity to have civic hygiene and avoid the police state?
Second, we have the question of what we mean by a police state. Do we mean a state that enforces the laws? We assume the police state is bad because we associate with East Germany or a state that is run by the police. Yet, nation of laws and courts could be considered a police state. One could even consider ancient Athens, the birth place of democracy, a police state if one meant control over the individual. Yet, where does this lead us that we should avoid any infrastructure that can be used by a police state? In the end, we return to where we began, trying to understand the human condition and the best way to live. Therein, lies the issue we need to consider. What is the purpose and means for which a government is constituted? If it contains justice and promotes the good life, simply understood, then it is worth defending. If it is worth defending, it means the people will accept that powers and capacity must be made available to teh state. If the shepherd is not armed, how will we protect the sheep?
Thanks again for a thoughtful post.
All very interesting points – and I’m still thinking about them a lot! The primary point for me, though, as triggered by the Schneier quote, is that the difference between a ‘police state’ and a ‘liberal’ state is about assumptions and defaults (something I find myself writing about a lot!). In a police state, the assumption is one of suspicion and distrust. People are assumed to be untrustworthy, and as a consequence generalised and universal surveillance makes perfect sense – and the legal, technical and bureaucratic systems are built with that universal surveillance in mind. The two police states I have most direct experience of, Burma and pre-revolutionary Romania, both worked very much in that way – the question of definitions of ‘police state’ is of course a difficult one, but when you’ve seen or experienced the real thing, it does change things. When I visited Burma back in 1991, I know that every local that even spoke to me in the street was picked up and ‘questioned’ after the event.
In a liberal state the reverse is true – people are (or should be) generally assumed to be trustworthy and worthy of respect, with the ‘criminals’, ‘subversives’ and ‘terrorists’ very much the exception. The idea of ‘innocent until proven guilty’ is a reflection (though not a precise one) of this. That is both an ideal and something that, in general, I believe works in practice. What that means, relating back to the Schneier quote, is that we should avoid putting into place anything that is generalised rather than targeted, anything that assumes suspicion (or even guilt), anything that doesn’t have appropriately powerful checks and balances (rather than bland assurances) in place. It means that you should think very, very carefully about the advantages of things before putting them in place ‘just in case’.
At the recent ‘Scrambling for Safety’ meeting about the new UK surveillance plans (which I’ve blogged about before) two of the police representatives confirmed in no uncertain terms that the idea of universal rather than targeted surveillance was something that they neither supported nor believed was effective. They prefer the ‘intelligent’ and targeted approach – and not to put in place the kind of infrastructural surveillance systems and related legal mechanisms that people like me would call ‘bad civic hygiene’.
I realise that this probably doesn’t really answer your points – those are deeper ones, and I’m planning to to read your blog and think more about this!
Paul,
Good points. I agree that visiting a police state is a sobering experience. However, surveillance or the tools or surveillance are a secondary issue (as is privacy) as the tools in Burma are simply physical, ie interview (intimidate) the people rather than surveil them digitally. The issue of civic hygiene is about the regime not about technology. Thus, we have to return to the primary issues, the rules, laws, and culture (ie what makes up the regime). I live under a regime whose laws I have no say in making. As an American that is a sobering experience because I realize that I do not have the same rights as I would at home, and the government only has limited responsibilities to me.
If we have good laws, and due process within those laws, we are likely to have a good regime. The American founders for example, feared human nature because they saw what could happen with unchecked power in the hands of an individual. As a result, they set up a nation of laws (the POTUS takes an oath to the constitution NOT to the people. The US soldiers do not take an oath to POTUS, it is to the constitution). This is not to say the US is perfect or without flaws regarding surveillance or politics. Instead, it is to argue that we need to put any discussion of surveillance and privacy within an immediate political context. (As an aside in the UK, the allegiance of Police and Army are to the Monarch not to Parliament or to the People). To be sure, oaths and constitutions do not change human nature.
The concern with police powers is not simply about suspicion, it is about the society we want to live in and how that power is held to account. Thus, the issue of defaults and assumptions is limited given that that regime is not fully accountable for its actions. Until the rule of law, as expressed in a constitution (either UK or EU), then the assumptions and defaults will only be surface dressing to the arbitrary exercise of power. However, the power is not openly arbitrary. Instead, it is a gradual accumulation of powers to the state (to parliament) away from the people and the monarch. What the phone hacking scandal has show is how empty HRA 8 is protecting people from institutions and organizations intent upon investigating their lives. As such, the guardians of the regime (those who are suppose to exercise the defaults and the assumptions) were acting arbitrarily ie within the interests of their organization even though they were claiming to act in the public interest.
What we see is that the power so far has been unaccountable, which gives us pause when we hear promises about defaults and assumptions expressed by the state even a liberal one.
All very interesting and valid points – though I have a feeling the perspective over here is a little less focused on the constitution itself… as you know, we have an unwritten and somewhat unfocussed constitution, and many of us believe that can in some ways be preferable to the rigidity of the written constitutions in the US etc. From this kind of perspective, defaults, assumptions and ‘ideas’ play a much more important part than you might realise. Though technically the allegiance of the police and army are to the monarch, few police officers and soldiers see it in that way: they believe themselves to be serving the country, the people AND the monarch, and see their oaths as primarily ceremonial rather than prescriptive…
..that, however, is something I would never expect to be able to convince any Americans of!