Why a ‘Bloggers Code of Conduct’ is a bad idea

cops

Paul Walch of Segala, asks ‘Do we want a code for blogs?’

This question has arisen due to the Kathy Sierra controversy, the case of the online harassment of an O’Reily writer by an anonymous group of commenters, at a blog created specifically for uncensored criticism. Very quickly the ‘blogosphere’ divided into two camps, those who repudiated the hate speech directed at Sierra, but considered it a cost of the freedom of speech that blogging affords. And those, like tech writer and Web2.0 pioneer Tim O’Reilly, who believed a response was needed (beyond the specific legal retaliation sought against the perpetrators). O’Reilly’s proposal was a code of conduct for bloggers. Here’s the wiki for the code under development.

What follows is my response to Paul’s question, both in terms of the idea of a bloggers code of conduct, and the specific code O’Reilly proposes.

In short

Absolutely not, as Glen Farrelly points out, ‘good’ bloggers will follow their own individual codes regarding what they perceive as responsible behavior, ‘bad’ or ‘irresponsible’ bloggers will not follow any informal codes.

In detail

Apologies in advance for my inevitable mistakes in attempting to characterise Irish Law, a complex area in which I am not qualified to comment.

The blogosphere already has the means to deal with antisocial behavior, whether it be the denial of links to hate sites, or taking legal action against defamation. It could spell disaster if additional forms of policing emerge from within blogging, at a time when freedom of speech is being implicitly reduced through the dumbing down of media and the normalisation of embedded reporting; and explicitly prevented by anti scientific and religious extremist movements, by totalitarian governments (witness the insidious sousveillence built into the Chinese version of MySpace), and by the misuse of legislation regulating speech online.

Generally speaking, the blogosphere is a broad church with respectful members. A vanishingly small number of individuals abuse the anonymity blogging makes possible to besmirch others, beyond the acceptable realms of satire or parody. Their actions are to be repudiated, but should not be used as an excuse to sacrifice the freedoms enjoyed by all. Luckily, the centralised, intercommunicative nature of the blogosphere, means indubitably antisocial behavior is rapidly identified and denied an audience.

Copyright:

Adding copyright to the debate, as O’Reilly has done, appears an example of abusing a controversy for personal ends. Copyright and patent law are in a state of flux right now, and in a sense a culture war has developed. On one side neoliberals like the WTO and corporate lobbyists, are seeking to maximise copyright duration, and criminalize copyright infringement through legislation like IPRED2 in Europe and in the DMCA in the US. On the other, NGO’s like the Free Software Foundation, Creative Commons, the Open Science Project, and the Electronic Frontier Foundation, are developing methodologies for the open exchange and development of ideas; and seeking to defend fair use and ensure a viable digital commons.

This debate is far from over, and to seek to propose a set of guidelines for blogs, enforcing laws which in many cases have been imposed in complete contradiction with how the web has evolved, and the means by which humans most effectively proliferate knowledge and opinion, is both absurd and dangerous. Let me provide an example. In Ireland, where this blog is written (though not hosted), the legally allowable extent of ‘fair dealing‘ (equivalent to the concept of fair use), is more restrictive than in the United States. Under Irish statute, it may be literally illegal not merely to host copyrighted music (as the highly influential, promotional music blogs regularly do), or images (as most bloggers do to illustrate their articles), but also to quote small sections from newspapers, books, blogs or other material under copyright, as is almost universally done by blogs to illustrate a conversation. To quote Daithi MacSithigh (who I’m almost certain won’t sue), “Copyright violations are either legal or illegal – we don’t need a Bloggers’ Scout’s Honour Code to deal with things that people post.”

Defamation:

Defamation and liable laws are also much stricter in this country, with both the hosting company, and the owner of a blog liable, not merely for a blogs content, but for the defamatory content of its comments. This host liability is regularly misused by aggrieved companies, who have for example received a negative review of their products, to have entire websites preemptively removed with a solicitors letter. A practice described by TJ McIntyre, in the Sunday Business Post, as ‘a form of privatised and cheap censorship that’s quicker than going to court’. A ‘liable’ can consist of merely repeating published allegations. Just as I, in this very article, am repeating the allegations regarding the alleged threats to Kathy Sierra.

And lest you think that such legislation is a quirk of a wee country’s decrepit legal system, the same removal procedures frequently occur in the United States. When a hosting company receives a complaint under the safe harbor provisions of the DMCA, it can protect itself from liability if it ‘responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity’ (DMCA SEC. 202, Amendment Sec. 512, C, 1). Irrespective of whether the material in question is actually infringing. This provision is often used to deny access to (or delete outright) entire business or personal websites on the basis of unsubstantiated ‘takedown’ letters.

Chilling Effects:

Now Paul Walch is not proposing Tim O’Reily’s guidelines specifically, and Tim O’Reilly’s evolving guideline do no currently seek to extend copyright, or the reach of defamation law. However, the examples quoted above are just some of the chilling effects which emerge when codes, guidelines and ultimately laws evolve – with the reasonable goals of protecting individuals from harassment, and businesses from copyright infringement; and ultimately act to dilute sometimes necessary anonymity, erase criticism, and create artificial fences around the communication of ideas.

It is sheer naiveté to assume that if a bloggers code does emerge, complete with microformat tags and shiny PNG badges, it will not be used within censoring applications, such as those which are manditory in US schools and libraries, to restrict access to information. Or by autocratic governments to censor their own citizenry. Moreover, it is insidious to conflate such codes of conduct with labels declaring compliance to web standards and accessibility, or opt in licensing agreements like Creative Commons; as Content Label appear to be attempting. While creative commons licenses facilitate the controlled sharing of information by it’s creators, and accessibility guideline facilitate the widest possible access to information, a bloggers code of conduct can only ever reduce the freedom of expression which blogs facilitate, and if successful could act to ghettoise speech outside its defined framework.

What’s the use?

While O’Reilly’s code and similar initiatives will most likely fail to win enough popular support to become enforceable, it’s not beyond the realms of possibility that they will succeed enough (for example by becoming default options on blogger and typepad, or in wordpress installs) to endanger debate. Without an enforcing body they are effectively powerless (unless separately enforced by governments or third party filters), with the backing an enforcing group they have the potential to become the internet equivalent of the much criticised MMPA rating system.

Paul Walch says ‘I’m not trying to police the Internet‘, and I believe him. But when codes like the one currently proposed emerge, they fill a vacuum in the control of internet speech, and are eagerly supported by individuals and governments who seek such control.

One interesting question to ask is, would such a code of conduct have prevented the Kathy Sierra incident? Markos Moulitsas Zúniga thinks not, “1) There are assholes that will 2) email stupid shit to any public figure (which includes bloggers, but 3) that won’t be stopped by any blogger code of conduct”.

Interestingly, under Irish law, my quoting Zúniga technically infringes copyright, thus violating O’Reilly’s proposed code – ‘We define unacceptable content as anything included or linked to that.. infringes upon a copyright or trademark’.


Creative Commons photo by Marie Richie. Attribution-NonCommercial-ShareAlike 2.0

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