Jane Wakefield's follow-up piece for the BBC about Kathy Sierra is now available:  Call for blogging code of conduct.  I'm quoted in the piece and would like to clarify a couple of points and provide you with all the comments I provided her.

I'm presented in the article as a counterpoint to Tim O'Reilly's suggestion that a blogging code of conduct is a good idea:  "Denise Howell, a US lawyer and blogger, believes that the blogosphere is no place for legal requirements."  I did not say that to Ms. Wakefield, and I don't believe such a characterization is warranted from the comments I gave her.  Our Q&A on the subject was as follows:

> 2)Would you advocate a bloggers code of conduct? How do you see this
> working?

I think various such codes already exist (Google it and see, you
should find something I think).  They allow bloggers interested in
doing so to assure readers and inform commenters that they adhere to
various principles.  As a practical matter I don't see such a code
having much impact in a situation like this.

 

Q:  …[I]t would be great to get a few of your thoughts in email. …

A:  [I premised by explaining I know several of the people discussed in Kathy's post.  Then said:] 

The tools of the Live Web have made it easier than ever for ordinary
people to communicate and express views in their individual
capacities, and to provide platforms, e.g. on their blogs, for others
to do so.  I think anyone who enjoys any aspect of the Live Web would
celebrate this fact, and agree its vitality would be impaired if the
law expected or required these ordinary people to envelop themselves
and their sites in elaborate legal provisos and conditions if they
hope to be shielded from potential responsibility for the bad acts of
others.

The Kathy Sierra situation is forcing bloggers to examine their moral
compasses on a number of fronts.  While most of the attention I've
seen is around what sort of discourse should be tolerated and the
deplorable nature of hate speech, the extent to which others should or
must police deplorable or unlawful speech should also be front and
center.  Most people would agree that provocative and controversial
discourse is the heart and soul of the Live Web, but that sort of
speech also can attract those who seek to do deeper harm (whether
psychological or otherwise) than merely engaging in such discourse.
Awareness of that fact may warrant and prompt the blogosphere to
emulate more traditional online discussion forums by promulgating
explicit ground rules and terms of service.  In the U.S., group blogs
might also test of the scope of Section 230 of the Communications
Decency Act, which limits the liability of those who merely provide a
platform for the online activities of others.

> 1)Have you personally been aware of sexism in the world of blogging? Is
> it harder for a woman to blog? Do the criticisms tend to make reference
> to gender differences?

I've personally experienced only welcome and from time to time
challenging discourse, but always on a respectful level.  Blogging
offers a largely meritocratic, globally reaching platform that is
accessible to anyone, and can be a vast improvement over other
environments where women do not have such a degree of access and
opportunity.  Despite my fortunately good experiences, I do think it's
harder in some ways for women to blog.  For women with families, it's
constantly in the back of your mind that you're putting not just
yourself but to some extent your family in the public eye.  (Of course
the same is true of male bloggers, but I think women are more acutely
aware of and concerned by this fact.)

Blogging is a mirror of society, subject to all of its shortcomings.
I women bloggers can face the same sort of unique hurdles and
challenges as women journalists:  i.e., on a substantive level, it can
be harder for them to achieve the same sort of influence and reach as
their male counterparts, and on a personal level their gender itself
can trigger undesirable attention and response.

The frightening threats against Kathy Sierra have been discussed on perhaps hundreds of blogs and in the press yesterday and today.  Also under scrutiny is Kathy's implication of various bloggers as bearing some responsibility for a third party's (or third parties') conduct which is rightly and roundly being condemned as reprehensible.  

I'm no stranger to those bloggers, though I was until now unfamiliar with Kathy and her work.  Jeneane Sessum, Frank Paynter, and Christopher Locke (and more peripherally Allen Herrell) have been part of my blogging family from day one.  As can be true of actual family members (if you're lucky), though I don't agree with everything they do, say, or write, they've often been inspirational to me, and have frequently dazzled me with their brilliance, compassion, sensitivity, and personal courage to call bull**** when they have believed it to be warranted.  I first hit "post" on a group blog administered by Jeneane, and thereafter on another administered by Frank (it then became his personal blog when he voted us rabble off the island; see Frank, the 'Net never forgets).  (Here's a blast from the past for some of you reading:  remember blogtank?  Who the heck was administering that one?)  I first hit "post," along with a flurry of others, because Chris was engaging in some good old fashioned link-bartering and article-foddering, but primarily because of his infectious and ultimately accurate conviction that blogging was, and was going to be, quite an important and powerful form of communication.  It was Frank who first suggested to me, indirectly, by emailing me a question, that writing about legal issues for non-legal people might be a useful and desirable thing to do.

So, my consideration of this fracas is not without its baggage.  (Groaner; sorry.)

The thing that has stood out in starkest relief for me is not the fact of the threats or Kathy's reaction to them.  As others have ably pointed out, it's a big, scary world we live in, populated in part by a tragically high proportion of psycho- and sociopaths.  What has stood out for me is the extent of the potential disconnect between what real people actually do with Live Web tools and what the law might expect them to do based on its experience with what it mainly knows:  the primarily professionally administered static Web.  Real people don't meet a tool like Blogger or TypePad and, upon learning they can set up a group blog, think "Gee!  How cool.  Let me get my lawyer (what lawyer?) on the phone to draft up some really nifty terms and conditions so everyone will know just what's expected of them, and spell out exactly who owns, and who is legally, morally, and/or ethically responsible for, what."  They just don't.  In all likelihood they're writing at night when they should be sleeping, or otherwise in their "spare" time.  While sophisticated and well-advised political opinion makers might, real people lack both the resources and the foresight.  You might think they should, and maybe they'll start to, but imposing such requirements and expectations will quell socially valuable speech.  There's no getting around it.  Part of the ability of a blog to serve as "a little first amendment machine" does die at that moment.

Kathy has now suggested she does not intend to pursue legal remedies against those not directly responsible for the blog posts she has taken to task:

I should be more clear, though, that while *someone* broke the law with the noose photo/comment, I'm definitely NOT suggesting that anyone else did anything legally wrong.

However, nothing says she can't change her mind.  And nothing says that the next person with potential criminal or civil claims arising from an incident related to a group blog authored by real people without lawyer-drafted-and-blessed terms, conditions, and understandings won't attempt to hold the administrators and/or co-bloggers legally responsible for the actionable conduct.  As one who has followed the developing law under Section 230 of the Communications Decency Act, I have concerns about its ability to adequately protect each of the individuals who might confront, but by rights should not face, legal consequences in this sort of situation.  I have concerns about a court's willingness or ability to analogize this sort of situation to the existing body of Section 230 jurisprudence.  Those concerns are of course amplified as to parts of the world where Section 230 does not apply and has no local equivalent.

There's more to say but those are going to have to be my thoughts for now (I'm writing at night when I should be sleeping).  I gave some additional comments to the BBC's Jane Wakefield for a piece she is preparing to follow up on her earlier "Blog death threats spark debate."  Should they get truncated for (or left out of) the article I'll post them here.

The description of Jeff Jarvis's talk on the VON Web site captured precisely what he covered:

Our medium [Internet TV] is so new, we have the chance to do things right, to set ourselves up for success. What do we need to make our small TV revolution successful in advertising, measurement, networks, guides, marketing, PR? We need to get our act together. 

But you can judge for yourself; here are my notes: 

We can nurture an explosion of commerce, but we've got to get it right.  Weblogs didn't get it right.  "To advertisers, metrics are sex.  And size does matter."  Advertisers can't track our performance and their clients all fear us.  They lose, but so do we.  Helping people find the good stuff is important, but remember there's no uniform definition of what's "good" any more.  You don't have to be the blockbuster any more.  The tail of the dinosaur is far more powerful than the dumb brain of the dinosaur.  It's the vastness that matters, and video is now a form of communication.  Size doesn't matter; quality does.  Let's not get stuck in the same traps of old media.  We can do things right.  We are reinventing TV.  It's ours.  

Exploding Video is Jeff's new, very small, television network.  He's learning, learning lots about finding the right voice.  The roughness and bluntness of our new small television gives it credibility.  Our roughness is at least endearing.  We don't want to be old TV, and we're not sure what we should be yet but I hope we never decide.  Per hour cost of network television is $300k/hour as opposed to 18 Doughty Street:  $140/hour, all in.  

TV needs to go to where people are.  This is why Viacom's move against Google is such a collosal mistake.  Fans recommending good stuff is invaluable.  Jeff's 15-year-old son never clicks through channels with the remote.  He finds things only through recommendation.  Monetize and control is the wrong way.  Monetize, Jeff gets.  But we need to figure out a way to monetize without control.

This doesn't mean you ignore the big guys, you work with them.  When they showcase you, you get audience, they get "cool points."  Then there's money.  "I'm not getting enough.  I'm not getting any."  Dina Kaplan at Blip.tv is doing a tremendous job.  What do we need?  Measurement.  We have to give advertisers orgasms.  Metrics are sex.  We have to serve people where they are.  Metrics have to be standard, public, and verifiable.  We need to recognize the value of links and recommendation.  Every media element needs to have a unique identifier.  We need experimentation.  It's 1954, as far as this TV is concerned.

We need ad serving.  The only way the big boys will play is if they can put things multiple places.  We need to sell ads across networks.

We need trust and identity.  Who made it?  Advertisers won't go for anonymity.  It's also important for creators to get their money and credibility.  

We need guides.  Network2.tv is one.  We're all critics, and we're all networks.  We need to get judged on our recommendations.  The idea of people as guides matter.  The whole role of criticism has changed.  It's social, it's trusting your friends.  But it's hard to find the good stuff.  It's a mistake to concentrate on the flaming farts.  There are gems in there, but it's difficult to find them.  There's hope on Blip.tv, where Jeff found the talent to do his show Idol Critic.  Dina Kaplan and company are developing talent and finding good people.  Network2.tv is another chance to find where the good stuff is.  Jeff started Exploding Video to help find guides.  

The world isn't bifurcated into "premium content" and "the rest."  There's good stuff in the rest (even if it's not yet making money).Viacom is a fool for demonizing fans for recommending shows.  CBS on the other hand, also in the House of Sumner, is trying to find as much as they can to put on YouTube.  

Finally, we need protection against regulation.  Doc Searls:  it's a mistake to think of this stuff as content.  It's conversation, and when you regulate it you regulate our speech and our lives.  We have to be fearful, stand together, and fight together to keep TV ours.  It is our place, protect it.  

We're only going to make TV that's better (it's 1954).  We have a new definition of better, and best.

Q from a New York Times person:  if you do all these things, aren't you just becoming big media?  A:  The economics of this world are different, the definition of a hit is enough to survive.  

Q from a ZDNetter:  who's we?  A:  Anyone who wants to make TV. 

[tag: von07]

Update, 5:32 p.m.:  Consummate and indefatigable blogger that he is, Jeff blogged his own talk.

Hard on the heels of a Texas district court's recent decision to dismiss claims against MySpace, Howard Bashman spotted a recent Section 230 decision out of the First Circuit that continues in this vein, and emphasizes the clear judicial trend of applying Section 230's protections to Web sites acting as neutral hosts of a third party's wrongful acts (excluding infringement, which is the province of a specific provision of the DMCA).  Courts seem to have little trouble reaching this conclusion when dealing with text based communications, but I'm curious to see what will happen when a case involving a podcast or videocast commenter comes up.  Per its language, Section 230 immunizes providers and users of "interactive computer services," defined as:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The provision most of these cases turn on provides that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(Emphasis added.)  An "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."  I emphasized "provided by" in the language above because if a site exercises a sufficient amount of editorial control over the third party material, this can lead a court to conclude it is no longer wholly a third party contribution and render Section 230 inapplicable.

My take is that all manner of Live Web phenomena should constitute "interactive computer services" for purposes of this statute, but I wonder what wrinkles will flow from things like:

• site and/or user direction of what submissions get priority display or distribution (e.g., digg; current.tv),
• defendants that otherwise would not be eligible for Section 230's protections (e.g., radio stations) but trigger the statute's application by adding (almost as an afterthought) a Web-based component to their otherwise non-Web dependent offerings, and
• mashups that build on user submissions.

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It's interesting to watch a different kind of social networking microcosm — different in its unique fit for mobile devices, and in the way it takes shoot-from-the-hip informality to a new level — emerge in Twitter.  It got me thinking about the benefits and potential hilarities that would accompany the implementation of an internal, business-facing Twitter-space.

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Reuters held a Newsmaker Event in New York recently it would have been interesting to attend; but for it being on an inconvenient coast I gladly would have gone:

PUBLIC FIGURES, PRIVATE LIVES -

A panel of experts debate how far the media should delve into the private lives of public figures

*Do celebrities and politicians have a right to private lives?
*Where does the public interest argument stop?
*Are families fair game?
*Why are we fascinated by the famous?

Panel:

Floyd Abrams, noted First Amendment lawyer
Bonnie Fuller, Chief Editorial Director, American Media, Inc.
Hilary B. Rosen, CNBC/MSNBC, Media Industry Consultant
Gary Morgan, CEO, Splash News/Paparazzi
Jacob Weisberg, Editor-in-Chief, Slate.com

moderator: Paul Holmes, Reuters

Coverage from Reuters, Culture Kitchen, BC Beat, and Jossip indicates there was much discussion but little consensus concerning standards in the online and offline/old media and new media arenas, and "quite of bit of talk about First Amendment/copyright/privacy issues and how they apply to old and new media." 

Meanwhile, Jason Lee Miller discusses how courts have shown their willingness to apply defamation laws in all applicable contexts. 

And just last night in San Francisco, bloggers, podcasters, and journalists converged for a Social Media Club Roundtable "on what is the right thing to do to properly disclose interests and conflicts of interest."  Here's pre-event discussion from Chris Heuer and Mike Arrington, and Chris' post-event recap.

Wikipedia cites Mr. Spock's goatee from the original Star Trek series episode Mirror Mirror as "a part of popular culture as a satirical symbol of evil and normality run amok."  So it is with states (currently, New York, though it's not alone) that would indiscriminately impose onerous advertising regulations on blogs and other online communications authored by lawyers.  In such a universe, markets aren't conversations — they're conversational vacuum.  More:

• Law blogs raising prickly ethical issues
• Autophagy in the Courts
• Between Lawyers, legal ethics and advertising