Recently in Internet Category

Hat tip to Pete Black, whose blog brought to my attention a story on the Times Online which he describes as 'a disturbing report on a new form internet censorship being proposed in the UK'.  From the article:

Social networking sites will be required to remove material unsuitable for children, such as nude or violent images and comments, within 24 hours of receiving a complaint, under a tough new code for internet safety.

The Byron Review on e-safety, published yesterday, also recommends that search engines such as Google and Yahoo display a "safe search" button prominently on their home page, to filter out potentially harmful material when children search the web.

The report, by the clinical psychologist and writer Tanya Byron, also recommends that websites promoting suicide be closed, using existing laws on assisted suicide. Those that promote self-harm and eating disorders should also come under greater legal scrutiny.

Dr Byron, a mother of two, said yesterday: "Many parents seem to believe that when their child is online it is similar to them watching television. In fact it is more like opening the front door and letting your child go outside to play unsupervised."

Assuming that Byron's analogy is correct, if a parent opens the front door and lets their child go outside to play unsupervised, and something bad happens, is it the fault of the outside world or is it the fault of the parent?

Dumbing down the Internet to a level where it's supposedly 'safe for children' is not the answer.  What's worse, is that this is merely one part of a disturbing trend of the abdication of parental responsability to the government.  The Internet is supposedly harming children, so instead of parents supervising and educating their children, the government will tame the Internet.  Children are too fat, so instead of parents controlling their children's diet, the government will ban advertising of junk food when they're likely to be watching television.  The government isn't a babysitter and neither is the Internet!

The irony of this is palpable..  Labor have adopted the term 'clean feed' to describe their half-baked plan to force ISP-based Internet filtering upon us all.  And yet the company peddling Internet filtering software from the website cleanfeed.com has banned the website for registered Australian political party One Nation for containing 'hate speech'.  Screenshot:

You can verify this yourself on the cleanfeed.com website, using their 'test a site' facility on the front page.

But, there's a very serious side to this very funny example:

• Filtering products are inaccurate.  There will always be overblocking and underblocking.
• Blacklists and categorisations of websites are subjective.  Whether One Nation in fact engages in 'hate speech' is dependant on your point of view and there are arguments for and against.
• Government mandated filtering that has effects such as this may run into constitutional problems.  We have an implied freedom of speech on political matters in Australia.  If a government-mandated filtering system is going to block access to political websites -- especially websites of actual Australian political parties -- it would seem to be succeptable to a constitutional challenge.

The Australian has a good article today about Senator Conroy's marvelous plans to censor the intarwebs, to save the children of course.  Or is it about stopping child pornography?  I wish they'd make up their minds.

In any case, the article is very good, but the claims made and quotes from people in it are just screaming out for rebuttal, so here is the article (indented and in italics), with my commentary dispersed throughout (not indented):

BROADBAND Minister Stephen Conroy faces an uphill struggle in his plans to increase internet censorship by boosting the official blacklist from a puny 1000 web pages to many millions of banned websites.

I'm not sure Conroy wants to increase the size of the official blacklist per se, I think his current plan is to force content-based filtering upon everybody.

Industry commentators say the task may be beyond the capabilities of filtering mechanisms and procedures, and it would be impossible to block all such material.

I agree completely.

The scope of the problem is, however, immense. Policing child pornography alone could be beyond present capabilities.

It's been a busy week.

The media have gone into a feeding frenzy over Labor's election commitment to 'save the children' by forcing ISP-based Internet filtering upon everybody in the country, unless they specifically opt out of it.  Nothing in particular seems to have precipitated this feeding frenzy.  I have it on good faith from Senator Conroy's office that there have been no new announcements (apart from some new comments to the media equating freedom of speech with watching child pornography), and nothing has changed since they announced this before the election.  It looks like one journo decided to write a follow-up article, which started a chain-reaction of scathing scorn and condemnation.

I find it somewhat amusing how media outlets feed of each other in this way.  For instance, I can pretty much guarantee that if I'm quoted in the Sydney Morning Herald about anything remotely topical and newsworthy, I'll be getting phone calls from ABC radio stations throughout the country wanting to do interviews.  It's somewhat ironic that an EFA media release doesn't have the impact that one story on smh.com.au does.

Anyhow, the media are really laying the boot into Labor's plans.  They weren't this critical back in 1999 when the Coalition were proposing more or less the same thing.  Perhaps with FOI becoming a waste of time and money, civil liberties increasingly going down the tubes, and the growth of a culture of secrecy at the Commonwealth level, the media outlets are taking the adverse potential of this scheme seriously.

A random assortment of media coverage:

ITWire, New Australian Government tries totalitarian Net censorship
The Australian, Net-nanny state worth watching
AFP, Australia's plans to filter Internet under fire
Australian IT, Labor online strategy slammed
Al Jazeera (yes, seriously), Rudd's 'clean web' plan criticised
The Courier Mail, Censorship must be left to parents
ITWire, One small but significant step towards Internet censorship
Scopical, Plan to filter Australian internet a 'dud' says EFA
IT News, EFA attacks Labor's 'clean-feed' Internet proposal

EFA's press release is here and an earlier analysis of their policy is here.

'ReputationDefender' offer a service to, amongst other things, 'find out everything that's being said about you online and get rid of the content you don't like.'

Pity that it's a scam.

'Powered by Search & Destroy', their service 'scour[s] the internet to dig up every possible piece of information about you, and then we present it to you in an interactive monthly report,' and '[n]ext we DESTROY. You can select the content from your report that you don't like. This is where we go to work for you.  Our trained and expert online reputation specialists use an array of techniques developed in-house to correct and/or completely remove the selected unwanted content from the web.'  (Emphasis added)

Their services are based on a false premise - that it's possible for them to 'destroy' content posted on third-party websites. Their website is deliberately vague on how they supposedly do this, but it's not at all clear to me how they can 'destroy' other people's content without criminal computer crime being involved.

It's possible that their 'destroy' service really just consists of sending out nastygrams threatening to sue the pants of everyone saying anything that their clients 'don't like.'  In which case, their marketing-speak contains a stack of likely contraventions of s 52, 53, and 55A of the Trade Practices Act 1974 (Cth).

A novel interpretation of s 60 might mean that their nastygram campaigns, in and of themselves, contravene the TPA.  If the service they supply their customers consists of using 'undue harassment or coercion' against third parties, I think this is quite arguably 'in connection with the supply or possible supply of goods or services to a consumer', in contravention of s 60.  The section doesn't say the 'undue harassment or coercion' has to be used against the customer.  A bit of a stretch, granted, but hey, I said it was a novel interpretation.

Articles such as this one tend to suggest that rather than 'destroying' content that their clients want to disappear, they setup new sites containing more positive information, and use SEO techniques to ensure that the 'positive' material appears in search results before the 'negative' material.  Still, this isn't 'destroying' the negative content in any way, shape or form.

The marketing for their services are based on another false premise - that you can or should be able to 'get rid of the content you don't like' on the Internet. I notice that on their FAQ they claim to respect the First Amendment, and so they don't go after the media or the government.  They seem to have forgotten that the First Amendment applies to everybody in America - not just organizations with money and lawyers.  Everybody else -- including but not limited to me -- is presumably fair game.

People have a right to engage in lawful speech on the Internet without organisations such as ReputationDefender threatening to sue them for saying things that their clients 'don't like'.

Their marketing to parents -- eg 'Don't let the internet ruin your child's reputation' -- seems to be little more than scaremongering.  They're relying on parents' fear and ignorance about the Internet to promote an expensive (US $29.95 per "destroy") for-profit service that can't legally do what it claims to do.

Then again, I probably shouldn't criticise them.  If they decide this posting harms their reputation, they'll probably just 'destroy' it.

The Queensland e-courts website has just been updated to reflect that the notice of discontinuance in the 2Clix v Whirlpool action has finally been filed.  The notice was apparently filed on the 24th -- I'm not sure why it took so long to show up on their website.

Huzzah!

Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.

Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.

You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit.  At the time, I said:

"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."

Here we have the result.  An own goal indeed.

This has got to be, without exception, the absolute dumbest browse-wrap licence I've ever seen.  For those not familiar with the term, a 'browsewrap' licence is a purportedly contractual agreement that many websites like to pretend that you have agreed to be bound by, simply by using their website.  e.g. 'By using this website, you agree we own your soul.'

This particular browsewrap agreement is on the website of Dozier Internet Law PC.  Amongst other things, it claims that viewing the HTML source of their website is an infringement of copyright.  As they purport to be 'The Lawyers for Internet Business', they ought to know that the enforcability of browsewrap agreements is a very grey area, ought to know that many of their intellectual property claims are insane, and generally ought to know better.

Then again, this is the same law firm who has threatened to sue people for posting copies on the Internet of cease-and-desist nastygrams which they've sent out.

Other coverage of this issue is at Slashdot, Techdirt, and the Consumer Law & Policy Blog.

Here's part of one of the stupidest clauses:

Dozier Internet Law, P.C. has a lot of intellectual property on our site. For instance, we are the creators of all of the text on this website, and own the "look and feel" of this website. We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so. In addition, you should not make any copies of any part of this website in any way since we do not want anyone copying us. We also do not allow any links to our site without our express permission, except that you must maintain the link in our Copyright Infringement Warning Button as it is designed. The name "Dozier Internet Law, P.C.", and similar derivatives of it, constitute our trademark and servicemark, and should not be used in any manner without our permission.

So, I guess they'll now be suing me for:

1. Copyright infringement for viewing their HTML.  Which, incidentally, is not valid HTML, and isn't written particularly well either.  e.g. <meta name="KEYWORDS" content="keywords go in here">;
2. Linking to their website without their express permission.  Good luck with that;
3. Copying part of their website, because they don't want anyone copying them.  I wonder how they feel about criticism, ridicule and parody?; and
4. Using their name without their permission.  I'm shaking in my shoes.  Maybe if i say their name backwards, I can banish them to some other dimension?
   

Go on, I dare you.

After a seminar today run by Peter Black on the use of 'Web 2.0' in teaching, Peter and Jessica Coates tried to convince me that Facebook is not, in fact, crap, and is substantially better than Myspace; which is presumably, impliedly, crap.  Unless you're a ditzy teenager whose life ambition is to be on Paris Hilton's friends list and thereby gain some kind of incredibly lame validation.  But I digress...

Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects.  This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks.  It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.

The concerns I raised were largely dismissed as paranoia.  So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook?  In this posting, I dissect the Facebook 'Terms of Use'...  You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.

As I blogged about earlier, the judgment in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 was handed down this afternoon.  It is significant for many reasons, including that it is the first precedent in Australia (or elsewhere, so far as I know) dealing with racial vilification/discrimination in forum postings, and because it's the first 'proper' case I've argued in court (not counting two trips to the small claims tribunal against landlords (both won), a minor debt claim against a former employer (won), and a speeding ticket that I once tried to beat (lost)...).

The Collective won, but not for the reasons I was hoping.  The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived.  Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made.  As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.

However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned.  On this point, Gyles J said at [35]:

However, there is substance to the argument that the failure to remove the offensive material has not been shown to have any relevant connection with race or ethnic origin of the applicant or indeed any other Jewish person as required by s 18C(1)(b) of the Act. The failure of the unidentified administrator to remove the Second Message on and after 1 July 2006 was the clearest case of failure to act. I cannot conclude that such failure was attributable, even in part, to the race or ethnic origin of the applicant. If Dwyer [the president of the Collective] is accepted, the message should have been removed if its offensive nature was understood. However, failure to do so is just as easily explained by inattention or lack of diligence. Drawing the necessary causal connection would be speculation rather than legitimate inference. The same reasoning would be more obviously applicable to the systematic failure to monitor and remove offensive postings. Absent the necessary causal connection there is no breach of Pt IIA [of the Racial Discrimination Act] by the Collective.

Seems to be a judicial application of Hanlon's razor - 'Never attribute to malice that which can be adequately explained by stupidity.'

Gyles J made some comments in the judgment which are somewhat worrying, such as:

• 'the conduct of the Forum in permitting the posting of anonymous messages that are automatically available for display without prior checking is entirely the choice of the Collective' (at [11]); and
• 'The Collective chose to conduct an open anonymous forum available to the world without any system for scrutinising what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.' (at [34])

I'll muse on those quotes sometime in the future.

The end result is that the Collective won, with Silberberg to pay their expenses.  But the result could have been very different.  Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.

Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.

Where to from here?  Silberberg could appeal.  Or he could sue for something different.  I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case.  I don't like his chances.

EFA has issued a press release which will be available here later tonight.