Blogs, Tweets and Etalk – Risk Management and A New Legal Frontier Part One
By Professor Kim Lovegrove
Blogging and tweeting through mediums such as Facebook, LinkedIn and Twitter have become a mainstream medium of communication. These various mediums have also been used to develop brand and business or cult web presence. There are many examples of brands that have been able to become household names on account of their extensive web footprint. Any business or individual that is intent upon increasing their level of notoriety (in a positive capacity) can ill-afford not to have a strong web footprint.
Web communication in many respects has become a substitute for letter writing, the facsimile, postal means of communication and even conversation. Web communication; be it by blogging or twitter has also changed the application of language use. There is now a very large sub culture of ‘web speak’ which is characterised by an abbreviated turn of phrase, a new vernacular, a pigeon English or pigeon French, let’s just call it plain pigeon. ‘Web pigeon’ is all about conveying a message as quickly as possible and this is engineered by abbreviated discourse.
Coinciding with the evolution of abbreviated discourse is a relaxation and inadvertent disregard for the traditional rigours, that were part and parcel of the more traditional means of communication such as carefully considered letter writing.
By virtue of the trend where ‘web speak’ has become a substitution for conversation participants endeavour to type or blog as quickly as they can talk. Yet emails, blogs, and tweets are not substitutes for conversation.
How does oral conversation differ from new age written conversation such as blogs and tweeting?
Oral conversation is not print therefore unless it is taped there is no record of it. One can be much more candid and forthright when one communicates. It is not as easy to defame another if the disparaging remark is communicated orally and without witness. It is for this reason that highly confidential meetings are often held in private without witnesses and without records, likewise negotiations are often held in a similar theatre.
Communications, comments and opinions that find their way onto the web however, unless they are corralled by tight security channels, lack confidentially and this is what makes them potentially deadly.
Absent are the rigours that characterise more traditional and formal means of written communication. Absent are the greater freedoms that are associated with oral communication. New age abbreviated and accelerated web speak is fraught with the potential for unintended consequences.
Blogging, tweeting and emailing are all mediums of publication
That means they can all be defamatory, insulting, caustic and acerbic. The frightening thing is once “the genie is out of the bottle” the genie can never be shoved back into the bottle. Intemperate and acerbic email communications can go “viral”. This metaphor perfectly describes that given opinions or comments albeit brief comments, if they catch the public imagination can be republished and recirculated thousands if not millions of times. The communications are in a sense nomadic, no fixed place of jurisdictional domicile. That which makes the front page of the Melbourne Age or The Times may only attracted local readership. That which is published on the web, regardless of whether it hits the right note or the wrong note, can quickly assume an international audience.
That is why social media has accelerated the spread of civil disquiet, civil revolution and regime change in the likes of the Middle East; a Baghdad tweet or smart phone footage segment can hit the TV screens of faraway shores of the likes of New Zealand within two hours of the publication.
Organisations and people have not fully appreciated the seismic shift in risk and accountability that has been perpetrated by the ‘web speak’ revelation
Too often a retort to the question “did you know that tweets and blogs can be defamatory” is “no I did not”. Too many assume that this new substitute for conversation endows one with some sort of immunity. It categorically does not. The risks associated with ‘web speak’ or ‘web pigeon’ are abundant; to name a few:
- Breach of confidentiality
- Potentially criminal conduct
- Racial, religious or cultural vilification
- In circumstance where offence is taken the potential for serious reprisal
- The forfeiture of one’s privacy and anonymity
- The characterisation of one’s self as being something that is
at odds with a better definition of who one actually is
Defamation is the casting of disparaging imputations upon an other`s character or reputation. One can be defamed accidently or deliberately and by one is meant a natural person i.e. flesh and blood, or a corporation. Anything disparaging of an institution or a natural person that is communicated on the web by email, blog or twitter once published is defamatory. The defence to defamation is truth and if disparaging communication cannot be back up by truth he, she or it who may happen to take offence, can sue the perpetrator, be he, she or it a tweeter, blogger or emailer.
Breach of confidentiality
If a tweeter or blogger blogs confidential material then those who feel aggrieved by the confidentiality repudiation will be able to take legal issue. Insider trading is a classic example i.e. information that is leaked in circumstances where the ‘leaker’ had an obligation or a corporate responsibility to keep confidential information quarantined. This is indeed actionable and can be depending upon the jurisdiction culminate in criminal prosecution.
Potential for serious statutory censure
The leaking of confidential information can culminate in high level censure. The United States has taken umbrage with the publication by Wikileaks of that which it considers to be of state secret persuasion. Currently Mr Assange is “enjoying” political asylum at the Ecuador embassy. He is concerned by the fact that the Swedish government wishes him to stand trial for alleged matters to do with female complainants. His concern is that if he were to be extradited to Sweden the USA may be able to ‘rapidly migrate’ him to the US for prosecution of breaches of security regulation. Although he has the patronage of prominent civil libertarians and well-meaning advocates the old adage ‘do not mess with City Hall’ may well apply to him.
Any citizen of any jurisdiction must appreciate that anything that is published on the web that will give the security arm of government pause will be noted and if the government believes there is a threat to national security then there is every chance that the sovereign will have legislation that can impose criminal sanction which could be detention in perpetuity. J.Edgar Hoover would have revelled in the age of web communication because so much of the unfavourable material that he had to locate by surreptitious means can now be found in the public domain.
It is therefore vital that the citizens be encouraged to exercise the highest level of restraint in regards to the expression of views that could be considered a threat to national security even in the most democratic of societies. Furthermore if the case of Julian Assange is of any guidance it amplifies the notion that one`s country of birth will not necessarily becomes one`s benefactor or protector. Because the internet is a world-wide medium a foreigner can publish material that is an effrontery to another jurisdiction and if that jurisdiction is powerful it can assume sovereignty for want of a better word over the unwitting individual.
Racial, religious or cultural vilification
Firstly, there are a great many acts of parliament that are fashioned to take issue with racial, gender or religious vilification. Anything that is committed to print, regardless of whether it was tweeted, emailed or blogged that has discriminatory and in some instances irreverent imputation can be prosecutable. The circulation of pornographic material by email extraordinarily happens too often and needless to say is actionable at law by those that chance upon it and feel offended by it. If one fails to have regard to political correctness or anti-vilification creeds one does so at one`s on peril. Hence one should never publish any material on the web that could cause offence to any gender, any race or member of a religious fraternity.
In circumstance where offence is taken the potential for serious reprisal
Three years ago an outspoken Christian extremist filmed himself burning the Koran. This footage went viral and Muslim extremists announced on the web that he should be assassinated. There may have been no specific law that banned the burning of the Koran but under any criteria that was conduct that was bound to cause considerable offence and angst. One surmises that the conduct was designed to cause offence and it most certainly did. The “incinerator” would have been most ill-advised to take a vacation in the likes of Afghanistan unless he was intent upon purchasing a one way ticket.
This is a more extreme example of conduct and publication that is designed to cause offence. One surmises that on any given day, material or comment is published on the internet that either by accident or by design causes offence. Once offence is taken then unintended consequences and reprisal can ensue.
The forfeiture of one’s privacy and anonymity
As soon as one decides to become a blogger, a tweeter, a member of Facebook or LinkedIn one`s privacy and anonymity is a thing of the past. One assumes a web identity for better or for worse. Furthermore the material that one publishes on the web about one’s self effectively generates a new web DNA. People, particularly the younger generation are heavily engaged in social media and the web is bombarded by web identities that are encapsulated on Facebook profiles. This makes them somewhat naked as that which they consider themselves to be i.e. one’s definition of one ‘self becomes a public domain portrait. Little wonder that prospective employers now use the web for their due diligence and as a forensic tool in determining whether to employ someone.
A prudent head hunter or prospective employer will type the prospective name into Google to see what comes up. For this reason it is paramount that anyone that participates in web communication is at all times very comfortable with that which he or she commits to web speak. Because any ambiguous statement or any ill-considered perspective that is at any time committed to print can come back to haunt one “for ever and a day”.
More ominously there will be individuals or organisations that will download and collate material that serves to profile individuals and that information could potentially be used for sinister purposes like blackmail.
Next week’s bulletin will feature part two which will converse risk management protocols for web use.