Blogger’s Code of Conduct: a Dissection

Due to the recent kerfunkle over the Kathy Sierra affair, Tim O’Reilly has now proposed a “blogger’s code of conduct” (covered with no less than a front page article in today’s New York Times.) In this entry, I will dissect the code and highlight why I think such a code is a bad idea.

June 26th of this year will mark the 10th anniversary of the ACLU vs. Reno decision in the supreme court, which struck down the communication decency act and extended first amendment protection to the Internet:

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

It is based on that legal grounding that I believe that codes of conducts will generally result in lowering the value of internet speech. The last sentence, in particular (“he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship”) represents what I believe to be the most outstanding statement as to why Internet speech needs to be protected. That said, let’s now go into a dissection.

We celebrate the blogosphere because it embraces frank and open conversation. But frankness does not have to mean lack of civility. We present this Blogger Code of Conduct in hopes that it helps create a culture that encourages both personal expression and constructive conversation.

I, too, believe in frank and open conversation. The establishment of rules (or codes) seems to act as a way to “close” conversation, even if it is in a way that is limited by certain boundaries and while I agree that frankness and lack of civility are not equals, a question immediately arises as to who considers what proper civil discourse? Looking back at the creation of the United States and the institution of the Federalist papers, civility has generally been seen as the enemy of openness. The discourse between the US founding fathers was far from civil (even, in the celebrated case of Hamilton vs. Burr, ending up in a disagreement on civility ending up in a duel that greatly shortened the life of one of America’s greatest genius.) So, from the opening statement, we are already faced with an interesting challenge: how do we “encourage both personal expression and constructive conversation” while at the same time trying to clamp down on disagreement through that dangerous weapon called civility?

1. We take responsibility for our own words and for the comments we allow on our blog.

I generally agree with that comment but the challenge here is that it leads to immediate censorship. If I disagree with a comment on my blog, this statement basically puts me in a position to forbid that comment as I do not want to take responsibility for it. So, at this point, I am being forced to decide that comments on my site will have to agree with my own view or I have to take responsibility for comments that I disagree with. How many bloggers will be tempted to act as censor in those cases?

We are committed to the “Civility Enforced” standard: we will not post unacceptable content, and we’ll delete comments that contain it.

Deletion works as active form of censorship and also introduces an interesting legal question. As editor of the comment section, one would then become liable for every other comment that made it through, increasing the possibility of people being prosecuted because of the comments on their sites. Without censorship, they could be seen more along the lines of common carriers and would find themselves faced with a greater chance of winning such case. By agreeing to delete, they could face a tough battle.

We define unacceptable content as anything included or linked to that:
– is being used to abuse, harass, stalk, or threaten others

Once again, let me harp on who gets to define those terms. What constitute abuse? Is saying that “I believe so and so is a dimwit for saying…” considered a type of abuse?

– is libelous, knowingly false, ad-hominem, or misrepresents another person,

Libelous is a word with a lot of legal weight to it. This opens up a whole set of legal issues around how people talk online. The appearance of falseness can be enough to trigger a lawsuit (but not enough to win) and this portion seems to also fly in the face of a lot of established law (Zeran v American Online, for example). Another question about this section is “knowingly false”: to whom? to the owner of the blog? to the writer of the comment? to the person the comment is made about? to other parties?

– infringes upon a copyright or trademark

Google, Yahoo, Microsoft, O’Reilly, AOL, etc… are all trademarks. I have not put a TM after every single one of those trademarks in posts I write on TNL.net, which technically makes me in violation of this effort, from a trademark standpoint.

For the purpose of this post, I am quoting the substantial majority of the post by tim O’Reilly, which would technically put me in violation of his copyright. However, Tim has a Creative Commons License so he’s granting me some rights. Unfortunately, the rights granted by the CC license also say that you can’t reuse the content for commercial purpose: I run adsense ads on this site, which could be considered a commercial effort so, as such, I would technically be in violation of Tim’s copyright AND CC license. Under the terms of this, quoting substantial portion of copyrighted content would be a violation of the code. This means that blogs now have a choice: write only original content without extensive quoting or don’t run ads. It’s a tough choice for many bloggers.

– violates an obligation of confidentiality

Enron, the Pentagon Papers, and Watergate are only a few high level cases in the United States that involved a violation of confidentiality. Recent such violations could include the revelations about Abu Ghraib prison and Walter Reed. None of these stories could exist without such violation. Would it be a good thing to purge them?

– violates the privacy of others

This is a higher standard than what is currently given in any other media. Public persona are not given privacy protection in traditional media. Should it be different online?

We define and determine what is “unacceptable content” on a case-by-case basis, and our definitions are not limited to this list. If we delete a comment or link, we will say so and explain why. [We reserve the right to change these standards at any time with no notice.]

Who is we here? And why a “case by case” basis? This seems very dangerous to me, especially with the express notion of those standards changing at any time with no notice.

2. We won’t say anything online that we wouldn’t say in person.

I generally agree with that but what about people using the anonymity of the Internet in order to avoid reprisal. If that standard is held, then it will do a lot to clamp down on information that could have been useful but, because it is about powerful people, can’t be disclosed without fear of reprisal.

3. We connect privately before we respond publicly.

Does that mean that every person that’s talked about it contactable? If the president of the United States makes a comment, how do I connect privately to him before responding publicly? Does my sending him a letter constitute such private communication or do I need to wait for an acknowledgment of receipt?

When we encounter conflicts and misrepresentation in the blogosphere, we make every effort to talk privately and directly to the person(s) involved–or find an intermediary who can do so–before we publish any posts or comments about the issue.

Same as above. What if the attempt is not answered? Does that make it OK? Do we need to vet every comment beforehand? Should I send this to Tim and wait for his comment before I publish it? What if he sits on it: does that quash the story altogether?

4. When we believe someone is unfairly attacking another, we take action.

What type of action? What constitutes an unfair attack?

When someone who is publishing comments or blog postings that are offensive, we’ll tell them so (privately, if possible–see above) and ask them to publicly make amends.

Once again, how do we contact them? What if they don’t respond?

If those published comments could be construed as a threat, and the perpetrator doesn’t withdraw them and apologize, we will cooperate with law enforcement to protect the target of the threat.

Isn’t that already codified by existing law? Why does a code of conduct need to codify this? It’s already a given that such thing must happen (lack of cooperation with law enforcement can carry heavy fines and imprisonment). Which law enforcement authorities should we cooperate with: all of them? Only some? For example, if the Chinese government, Syrian government, Iranian government, South Korean government or other type of government where freedom of expression is not as expressively granted as it is in the United States contacts us, should we comply? I say no, but this code appears to say yes.

5. We do not allow anonymous comments.

Going back to my examples regarding the pentagon papers, Watergate, Enron and others: those would not have existed without anonymous comments. How does this code deal with that?

We require commenters to supply a valid email address before they can post, though we allow commenters to identify themselves with an alias, rather than their real name.

What happens if they hide behind a free email service? Is that OK? If so, what is the value of this statement?

6. We ignore the trolls.

This seems to be in violation of the rest of the code as ignoring them means giving them a free pass? If we delete their comments, we’re not ignoring them.

We prefer not to respond to nasty comments about us or our blog, as long as they don’t veer into abuse or libel. We believe that feeding the trolls only encourages them–“Never wrestle with a pig. You both get dirty, but the pig likes it.” Ignoring public attacks is often the best way to contain them.

If that’s the case, why should they be deleted then? This last section seems to contradict the rest of the code…

Because of such lapses and because I believe that “the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship,” I have to say that this code is not only a bad idea but one that should strenuously be rejected by members of the blogosphere.

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