James Titcomb finds that the question of who is responsible for material posted online is far from straightforward.
There was a time when making one’s work available to a mass market meant giving up the intellectual rights to the written word. To be published in print, the writer had to hand over his carefully-crafted prose to the publisher, who was then responsible for its content (including any legal difficulties) and was free to utilise those words to sell newspapers and advertising, while remunerating the author.
Simple, but not a model that works for the hordes of internet users that believe their thoughts and opinions are important enough to be available to billions. Online publishing platforms such as Twitter, Tumblr and Blogger are keen to distance themselves from any responsibility or control over what is written on them, emphasising that any material they publish is “owned” by the author.
Is this really the case? These same platforms seem perfectly happy to profit from their users’ work. Twitter has started to sell archives of old tweets and Google’s Blogger platform piggybacks on the millions of posts on its pages by using the space to sell advertising. If these platforms do not “own” the content on them, they are most definitely using it in a way that suggests they do, hence why their terms of service agreements state that the author gives the platform a licence to do almost anything they could possibly want to with it.
Why is this important? For one thing, the more rights the author hands over to the publisher, the less control they have over their work. The author could potentially be censored and exploited. More pressingly, it opens up the question of who is legally responsible for the work.
The British legal system, as on so many subjects related to the digital age, is hopelessly out of date on this matter. It is especially relevant to this debate, though, because its archaic libel laws mean that whoever does own those precious words is vulnerable to the crack of the judiciary’s whip.
Earlier this year, Mr Justice Eady (who is often accused of upholding libel judgments that fly in the face of common sense and freedom of speech) ruled that Google was not responsible for allegations posted by an anonymous Blogger user. The case against Google was brought by a Conservative party activist, Payam Tamiz, who had been labelled “a drug dealer and a thief” on the offending blog. Mr Tamiz claimed that, as the ultimate publisher of the allegations, Google was responsible for the content and thus had libelled him.
Google claimed no responsibility, calling itself a “neutral service provider” which could not be expected to regulate what appears on its pages, and the High Court appeared to agree. Mr Justice Eady compared Blogger to a graffiti-strewn wall, and declared that it could not be held responsible for what others wrote on it.
The great divide, supposedly, is between that of “publishers” – such as news organisations, which have editorial control over what appears on their website – and passive “providers”, who supply a blank slate for others to furnish, such as Twitter and Blogger.
A fairly simple division, right? Not exactly. These providers still have control over the content on their sites; they have the power to remove material, utilise data about it, and sell advertising in the same space. The graffiti-strewn wall analogy is imperfect, because providers are encouraging and benefiting from the content they are so eager to distance themselves from in the way that the owner of the wall is not.
As Twitter in particular has found, it is not so easy to separate the author from the platform. Twitter’s recent agreement to censor tweets in certain countries suggests a semblance of responsibility for what is posted on it. A Parliamentary Committee last month proposed that social media sites should “take active steps to limit the potential for breaches of court orders through use of their products”.
Mr Justice Eady’s ruling in favour of Google was hailed as a victory for freedom of speech in the UK, but the same ruling may not have happened elsewhere. Twitter is currently defending itself in Australia for defamatory content posted on its site because in Australia, internet content hosts can be held liable for defamatory material posted by others.
One thing that makes current law so irrelevant to the internet is that online material tends to be available whatever country you are in. On many issues regarding ownership and liability, different countries contradict each other on points of law, but when it comes to the internet, legal systems seem utterly incapable of keeping up with the pace of change.
Current libel and copyright laws were designed for a different era, so it remains to be seen who will qualify as the owners of content. New legal systems for the digital age have been promised by many heads of state: David Cameron promised to shake up the UK’s digital ownership laws after Google’s founders supposedly told him that they could never have started up in the UK.
But what does this mean for the average blogger or tweeter? Potentially not very much; the litany of naïve social media users who have landed themselves in hot water for contempt of court, attempting to incite violence, or defamation should be enough to make the author think twice before making their words public. As for the likes of Google, they would gain little (and lose much) from using someone else’s work inappropriately.
However, if web publishing platforms are forced to change their behaviour because of new laws or judges’ rulings, the rights that the author has handed over to wherever they choose to hold their content may become very important indeed. Freedom of speech could be one casualty if hosts decide to be, or are required to be, more stringent about the content they own.
The law has finally started to catch up with the internet’s publishing model. If it does not do so in a way that allows authors to be held responsible for and to hold control over their own words, the consequences will be very damaging.