Saturday 19 April 2014

Brendan O'Connor: Online abuse should be real target for Shatter

Privacy law? Newspapers are already heavily regulated and ultimately are accountable for what is published, writes Brendan O'Connor

Fair play to Pat Rabbitte. While he indicated to the Irish Times on Friday that he, understandably, thinks that the media should go easier on politicians, he also indicated, in the Irish Examiner, that, as Minister for Communications he will fight Justice Minister Alan Shatter's efforts to introduce a privacy law to add to the regulations governing Irish news media.

Many of you will remember where you were on that shocking moment when you first saw the topless pictures of Kate Middleton last September. Most of you were standing in front of a computer screen or looking at a mobile device. A small proportion of you saw the pictures for the first time in the Irish Daily Star. By the time the Star printed the pictures, the bell could not be unrung. The genie was well and truly out of the bottle. By the time the Star published them, anyone who had wanted to see the pictures that badly could either just google them or get someone else to google them.

But when they were printed in the Star, there was pretty much an international incident, lots of tut-tutting from the chattering classes, and mild dismay all around at what people agreed was at worst a lapse in taste. Ultimately the editor who made the decision to print the pictures was forced to fall on his sword.

You could argue that this is an example of the power of old media over new, that the pictures only truly made an impact, only really mattered, when put on the printed page. But in fact the reason a small minority of people seeing them in the Irish Daily Star became a huge issue was because with the Irish Daily Star there was accountability.

With the Star, there was someone to point the finger at. There was someone to blame, there were people of whom hard questions could be asked. Ultimately, there was someone to fire. History does not record whether anyone got the chop from any of the numerous websites who carried the pictures.

Minister for Justice Alan Shatter certainly didn't suggest a clampdown on the internet in the wake of the pictures going viral. He did, however, announce a clampdown on newspapers by taking the opportunity of the outrage to say that he was reviving a six-year-old privacy bill, a law aimed at further curtailing what newspapers in this country could publish. The minister is reviving this abandoned privacy bill because he thinks that newspapers have a difficulty in telling a difference between investigative journalism and "creepy keyhole" practices.

So essentially the minister responded to the publication of the Kate Middleton pictures by ignoring the largely unregulated environment where most people saw the pictures, because to think about trying to deal with that would presumably blow his mind. Instead he took the easy option and decided to further curtail old media, which is already infinitely more regulated and accountable and constrained than the internet. Classic displacement.

Right now, citizens of this country have several layers of protection against their privacy when it comes to old media like newspapers. They have a constitutional right to privacy. They also have a right to privacy under the European Convention on Human Rights, which has been ratified into Irish law. They also have protection under Irish case law.

Now, you could argue that all these protections are available to anyone whose privacy is invaded on the internet too, but the reality is not so simple.

It comes back to the question of accountability. With old media, you know exactly who invaded your privacy. In the first event, the author or photographer's name will be on the offending article or photo. Then there will be a chain of command, an editor who is responsible for the product in which the offence is carried. And there will be an organisation you can sue, lawyers you can deal with. And the publisher will not, under any circumstances, be able to deny responsibility for anything it publishes.

If your privacy is invaded on the internet you may initially have great difficulty finding out who did it, because much of what goes on the internet is anonymous (anonymity really brings out the best in human nature, don't you think?).

You may then choose to pursue the publisher of the offending material, the Internet Service Provider or the social media site, but you will probably find that they are not responsible because they have the defence of so-called innocent publication, because the publisher didn't know it was publishing invasive material.

So Google or Twitter or whoever argues that it had no idea it was publishing the material, it was merely a conduit. As long as the "publisher" in this case did not initiate, select or modify the material but merely carried it, it seems the law does not hold it responsible. Oh, that newspapers would have a defence of innocent publication. But no, we have to employ teams of lawyers to go over everything and even then we have to do a very old fashioned thing and take responsibility for what we put out there in the world.

But yet, it is newspapers that Alan Shatter seems to have a problem with. You have to wonder if he is somewhat living in the past.

It is odd that at a time when there have been a number of high profile suicides of young people, at least partially due to online bullying, and even the suicide of a government minister where one of the tipping points also seems to have been online viciousness, that the Government's primary concern right now is to further curtail the already highly regulated newspaper sector.

This is not some bleating from a dying old newspaper. The Sunday Independent continues to enjoy nearly a million readers a week in old-fashioned print. We also have an internet presence. We're not panicking yet. I personally love the internet. I love technology and how it is transforming our lives (though I have yet to find anyone who is working fewer hours due to the marvels of technology). But it would be idiotic to buy unquestioningly into the brave new notion pushed by billionaire tech gurus that all progress is by definition good, and all disruption of the old ways is by definition good.

Jaron Lanier, one of the pioneers of virtual reality and one of the people who initially coined the mantra that information wants to be free and who championed very early on the notion of the wisdom of the crowd, now has a radically different view on the future he did so much to shape. He believes that, unchecked, the web is destroying political discourse, economic stability, the dignity of personhood and that ultimately it will lead to social catastrophe.

While some of Lanier's ideas might seem alarmist, we should listen to him given his pedigree and his influence in creating the brave new world he has now turned on. Lanier now believes information should not be free because in reality, this represents not freedom of information but a massive transfer of resources from the little people to vast corporations like Google and Facebook. Facebook he characterises as "selling people back to themselves".

One of the things Lanier is most interesting about is online anonymity and how anonymous commenting can lead to mob rule on the internet. "You see in history," Lanier says, "the capacity of people to congeal – like social lasers of cruelty, where everybody coheres into this cruelty beam."

Is that what a teenager who kills themselves feels? A cruelty beam honed in on them? Is that what Shane McEntee felt? Lanier actually goes as far as to compare the new ideology of the web to the kind of Communism that murdered most of both his parents' families.

Look. Ultimately we are all in favour of freedom of speech. But ultimately we all know it is not an absolute right. What is also obvious to anyone is that if you are looking for where freedom of speech is open to abuse right now, it is largely in new media. In old media, the stakes are too high, the financial penalties for mistakes too massive. Furthermore, there are too many lawyers crawling all over everything, and ultimately, people have to put their names to stuff so it censors them.

If Alan Shatter really wants to do some good for the quality of public discourse, he might consider turning his attention from the already heavily regulated world of old media.

Maybe instead he could bring his intellect to bear on framing some protection for people from the online laser beam of cruelty. If he can figure a way to do this without killing the healthy online discourse that has developed over the last while, then Ireland could, in a whole new way, become a hi-tech world leader.

Sunday Independent

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