Lousy Legislation and Miller’s Malapropism

Maria Miller MP’s speech on the rights and responsibilities of the internet age was published online earlier today.

Having a mooch through it, I spotted a bit of a howler.  Given that the context relates to child abuse online, the slip, if that’s the best term for it, was very unfortunate indeed.

In tackling child abuse online, the new National Crime Agency is bringing greater resources to bare [sic].

Really? Isn’t it, ‘to bear’?

And talking of howlers, I’m not sure I agree with her claim that English law, as it relates to the relatively recent phenomenon of social media, exists as a ‘strong and durable framework’. In fact, it’s anything but.

Quoting again from the speech:

The internet isn’t a ‘Second Life’, it isn’t something where different rules apply, where different behaviour is acceptable – it isn’t the wild west.

To put it simply the rules that apply offline are the same rules that apply online.

Yadda, yadda, yadda.

The same already applies on social media

The legislation is already in place. And we have the guidelines by the Attorney General on contempt of court - and the Director of Public Prosecution’s on prosecutions involving social media communications – put together they present a strong and durable framework.

Outdated, ill-adapted and unclear would have been a more apt description of the law in my opinion.

Taking just one example from an inordinately long list, what about the bewildering duplication between section 127 of the Communications Act 2003 and the Malicious Communication Act 1988?

Does that sound like a strong and durable framework to you? Lousy legislating more like.

Let’s stop pretending that papering over the cracks with ‘guidance’ is an adequate substitute for proper public debate, consultation and legislative reform.

Because that’s what’s clearly needed.

Sexting dos and don’ts (yep, they exist... apparently)

From Motherboard.tv 09/06/11:

Obviously everyone knows what sexting is, but I would just like to explain it because I send these articles to my grandmother, and I don’t want to have to break down sexting to her face-to-face.

I don’t think anybody’s grandmother needs to know what sexting is. If she wants to swap X-rated polaroids with the rest of the church congregation that’s her business, but camera phones are just too much for the over 60s to cope with – particularly when there’s nakedness involved.

Basically, you take about a 100 pictures of your a*s in cute underwear and then one comes out good so you text it to a dude. ... The whole point of sexting is that as soon as the recipient gets it, they will speed over to your house for some hot sex.

As with any type of social exchange, there is a certain etiquette that needs to be followed.

Oh really?

For starters, don’t send a sext to someone who might not be down.

“not be down” ... I’ve no idea what this means.  I’m guessing it’s ‘up for it’ but I might be wrong.  Remember: I’m the chap who had to Google Andro’s use of the term “pwned” (something I still don’t fully understand) and, more recently, “fraped”.

If you want to test the waters, say something like, “do you like me? Y or N.” If they respond in a negative way, just pretend that you are drunk at a party and someone stole your phone.

Hold up: just because someone likes you, it doesn’t mean to say they want their phone polluted with an impromptu up-close-and-personal shot of your genitalia. That’s just not cricket.

When sending a picture, make sure it’s not trashy. I knew a kid whose ratty girlfriend sent him pictures of her [... you can read the rest of the this sentence over at motherboard.tv ;-) It made me chuckle. ].

Really? Can sexting ever NOT be trashy? Isn’t that part of the appeal?

Sexting is a dangerous game sometimes, but it’s always worth it. You can’t expect to get d**k pics if you don’t send out some artsy shots of your boobs strategically covered with suds during a bubble bath photo shoot.

…said the contract law lecturer to his class, trying to find a modern day example of quid pro quo in action. 

Techno Llama: “Why I’m Quitting Facebook”

Long time readers of Law Actually will be well aware of my general dislike for social networking and Facebook in particular. While I have mellowed slightly in my feelings towards certain forms of social media in the last few months, I’ve still kept Facebook at arms’ length.

Naturally, then, when I stumbled across Techno Llama’s post entitled ‘Why I’m quitting Facebook’ I just couldn’t resist a peek. Author of the blog, Andres Guadamuz, makes a number of excellent points:

[Through using Facebook I’ve] ended up with “friends” that I would probably not recognise in the street if they crossed my path. Unsurprisingly, by the time close friends and family had joined, my list was a bloated and unwieldy collection of former friends, former acquaintances, former work colleagues, former students, and former girlfriends.

Facebook is changing the way in which we interact with one another, and not always in a good way.

Maybe there are good reasons why we lose touch with old acquaintances, yet Facebook offers a space where the past and the present blur in ways that we are just starting to navigate.

I’ve long voiced similar ideas, reasoning that, in the main, personal relationships are self-regulating. The nature of the dynamic between people regulates the longevity of the relationship: you remain in contact with those you like and relate to and lose touch with those you don’t. Facebook is frustrating this process whereby the wheat and the chaff are no longer sorted. Instead, people are left with an ever-increasing list of people ‘hanging on’ which blurs the concept of friend, acquaintance, relative stranger and complete stranger. In the longer term, this could mean that the ingrained social and personal skills people rely on in recognising ‘real’ friends are dulled and made ineffective. The damage could be particularly far reaching for children as they develop social skills. That surely can’t be a good thing for society going forward.

Another point from Andres:

Face it, large part of people’s profile pages are nothing more than an exercise in gloating, showing-off the best version of themselves they can find.... to flaunt and to compare profiles... [and use Facebook] to gleefully go through someone’s profile to laugh and ridicule them in private.

If I’m honest, I’ve long suspected that the real reason I’ve stayed clear of Facebook is because I’m so contrary and didn’t want to be seen to ‘follow the masses’. I’ve maintained this stance for so long now that I’ve made a rod for my own back and feel unable to capitulate. Facebook for me always represented everything that was bad, corny and stereotypically insulting about social networking. While the current user base has now transcended the original Facebook demographic, my feelings are neatly summed up by a fantastic quote I found as part of my IT law course on the LLM entitled ‘Say Everything’ from New York magazine:

Kids today. They have no sense of shame. They have no sense of privacy. They are show-offs, fame whores, pornographic little loons who post their diaries, their phone numbers, their stupid poetry—for God’s sake, their dirty photos!—online. They have virtual friends instead of real ones. They talk in illiterate instant messages. They are interested only in attention—and yet they have zero attention span, flitting like hummingbirds from one virtual stage to another.

Perhaps I’m just old before my time but I know that a lot of people in my age bracket flock to social networking sites for precisely these reasons.

While I’m sure that Andres made the right call to leave based on his personal reasons, I think it’s pretty clear that social networking isn’t going to be disappearing any time soon; arguably, all the indications point to the contrary. I’m not sure that a mass exodus is the right way to go about this as users will simply flock to the next ‘big thing’ in social media. Social networking users need to understand and appreciate the complex relationships going on through Facebook and other social media services and the way they are different from conventional relationships. It’s common practice to accept the majority of friend invitations, leave the hangers-on in place and ‘defriending’ contacts is regarded as a personal affront. As I highlighted earlier, this is blurring the concept of ‘friend’ and potentially frustrating the ability of people to identity suitable subjects with whom to forge strong and dependable relationships.  Put another way, I believe we’re at a stage where dangerous social norms are at risk of entrenching themselves which could have implications that spread far wider than just social networking sites.

Think Before You Post… Will the message ever be heeded?

In a paper I wrote recently concerning the future of social networking, I argued that the single most effective solution for its safe use going forwards was the need for education to be heightened. This educative solution focussed on many things, from privacy related issues to piercing the virtual veil – a concept that I coined late last year. My recommendations were quite far-reaching and centred on a broad, multi-pronged approach to raising education and knowledge of the full-blown implications of social networking. On this basis, I guess, sending out reminders to job-seekers that their online actions can have real world implications – particularly for their job prospects – can only be a good thing.

From an email that dropped into my Inbox overnight from Lawladder.co.uk:

Social networking is a relative newcomer in the world of online recruitment and research is still being carried out into its effects.

However, it has already had a massive impact on millions of people and it would be naive to believe that you are immune from its effects.

When companies are researching a potential candidate for a job, running the person's name through Facebook or MySpace is increasingly becoming a routine part of the process.

Think about it. Would you really want your potential employer to see photos of you from a night out, your last holiday or another personal event? Would they present you as the most suitable person for an executive job?

Repeating the same message countless times, though, is of little use. Ultimately, those users who document some of the wackier things they get up to in their spare time on social networking sites really have to stop and take that message on board.

25 things I hate about Facebook

Compared to last year, I’ve been Facebook-bashing considerably less of late so when I came across this gem earlier, it was an obvious ‘must post’.  Enjoy.

Facebook could scupper insurance claims

Given that so much time passed from when I was at my Facebook-bashing best, I thought I might as well throw another Facebook related story up on Law Actually.  This time it's a snippet from Accidents Direct on 27.11.08:

[L]awyers have warned that insurers are now starting to monitor Facebook when investigating possible fraudulent claims. As before when many warned that potential employers will look at your Facebook page, insurance companies are now checking on what the claimants are up to, and if they judge from your pictures that you may be overstating your claim then it may be put in jeopardy.

It’s not only photos; it has also been warned that any light hearted comment written on your wall may be taken the wrong way by insurers and the courts. Not only is there the chance of your claim being thrown out of court, you can also leave yourself open to being prosecuted with making a fraudulent claim.

People throw all kinds of content up on their Facebook and other social networking pages with little or no regard to the real-world consequences that such action might have.  Some of the people who engage in this conduct are the type of people you would least expect it from.  The Facebook pages created by Metropolitan Police officers who had had so-called 'pol-colls' - collisions involving a police car they were driving - who used the social networking site as a means of boasting about and celebrating their carnage-causing antics are a case in point.  So too, is the situation in the U.S state of Georgia concerning a police officer who published content showing him 'playing' with a taser while off duty who actually 'tasered' his buddy at the latter's request. 

Given all this, it's hardly surprising, then, that people should contradict their insurance claims through content published online.  Illegalities aside, quite why you would even want to run the risk of being found out by putting something on your Facebook account showing your claim to be illegitimate is beyond me.  Perhaps Facebook speaks to a certain, deeply-rooted predilection for narcissism in some people and the opportunity to self-publicise your fraudulent antics is a opportunity too tantalising to pass up.  I don't know.

What I do believe, however, is that this is another case of the virtual veil in operation: the mysterious dichotomy that people make in their minds as to their online conduct and their offline, real-world behaviour.  By virtue of this fictitious veil, as I pointed out in a previous post, it is almost as though people view their ‘online persona’ as being so divorced from reality that any actions carried out online would not be attributed to their real ‘human’ person?  Slowly, over time, I think people will become increasingly aware of the fallacy that this concept represents and that, as far as the law is concerned, they are largely one and the same.  Perhaps that is happening already, though it does beg the question, why this 'virtual veil' arose in the first place?  While I leave you pondering over the answer to that, faithful reader, I promise to leave this 'virtual veil' stuff alone for a while.  Too much of a good thing, and all that!

A Second Virtual Veil

In keeping with the concept of the ‘virtual veil’ which I propounded in my previous post, I thought this story was worthy of mentioning too, despite the fact it’s been doing the rounds for a while now and is probably best considered ‘old news’.

The virtual veil in question here is the one worn by a virtual bride who married the avatar of her newly married husband in a second wedding after their real-world one in St. Austell, Cornwall in 2005. Having first met in the online game Second Life, they eventually met up in person and subsequently married. However, the happy days weren’t to last:

Amy Pollard, 28, discovered her husband's character having sex with another female player online filed for divorce citing "unreasonable behaviour".

She claimed that David Pollard, 40, committed adultery with the animated woman and said that it is the second time she had caught his character cheating on her.

In February last year, she said that he was having sex with an online call girl character and she even hired an online private detective in the game to investigate his adultery.

Mrs Pollard said that she discovered her husband's most recent online infidelity in April after she had awoken from an afternoon nap and caught Mr Pollard in a compromising position on the game.

She said: "I caught him cuddling a woman on a sofa in the game. It looked really affectionate.

"I went mad - I was so hurt. I just couldn't believe what he'd done," she said. "I looked at the computer screen and could see his character having sex with a female character. It's cheating as far as I'm concerned.

When I first earmarked this story as ‘bloggable’ material over a week ago, I failed to notice that the couple had in fact met and married in St. Austell, an area of Cornwall not a million miles away from where I grew up. For what it’s worth, it’s also an area of Cornwall best avoided if your impression of the county is one of unspoilt scenic bliss. I consider myself lucky to have lived just sufficiently far away from the town so as not to be stifled by its oppressively depressing and ungainly nature. Seriously, it’s a dump.

My second reason for finding this story interesting is the fact that the regulation of virtual worlds is an area of law which I find fascinating and, I hope, remains a potential topic for my dissertation. It’s certainly an area which is wide open as to quite how the law should handle the regulation of virtual events and the inter-relationship between the actions of real-life humans and their online personas. Effectively being a parallel virtual-universe, virtual worlds are potentially plagued from nearly as many issues as are encountered in the real world, ranging from intellectual property infringement to crime.

The virtual veil concept I spoke of in my previous post is applicable here too. Some people, including Mr Pollard (given that he was caught with his virtual trousers down) would (probably subconsciously) argue that there IS a virtual veil in operation which clearly segregates his online persona from that of his real-world one. His wife, no doubt, takes the converse view: for these purposes, the personas are one and the same. By cheating online via his avatar, the husband is just as unfaithful and culpable as if he cheated in real life.

It would be interesting to know whether Mr Pollard thought through the gravity of his actions and the potential consequences that might flow from them as seriously and thoroughly as if he went and embarked on an affair or paid a prostitute for sex, say.

The article points out both Mr and Mrs Pollard’s differing views:

"But he didn't see it [the online sex] as a problem, and couldn't see why I was so upset.

"He said I was just making a big fuss, and tried to make out it was my fault for not giving him enough attention.

Is it right to regard Mr Pollard morally culpable for his avatar’s antics when he, Pollard, didn’t physically do anything to constitute an act of infidelity? Is there any difference between conducting a virtual affair and simply having real-world thoughts of infidelity which are not acted upon? Was he not just victim to the virtual veil which clouded his judgement and left him blind as to the dividing line between reality and the virtual world? Did he not just naively mislead himself into believing, because of this mysterious virtual veil, that his online acts would have no real-world consequences? While I think I know where the consensus of opinion lies in response to these questions, it remains a contentious talking-point.

Sympathisers might, at a push, try and argue that Pollard merely became inescapably immersed in the virtual world and got ‘carried away’ in the (online) atmosphere of it all and he’ll wake up some day soon, suddenly realising it was all just a huge error of judgement on his part? Well, it seems there’s little chance of that:

"[L]ater [Mr Pollard] confessed he'd been talking to this woman player in America for one or two weeks, and said our marriage was over and he didn't love me any more, and we should never have got married." Amy [Pollard] said her estranged husband is now even engaged to the woman he had an 'affair' with on Second Life – even though they have never actually met in real life.

But it gets worse. While Mrs Pollard might have been successful in getting her divorce, it seems as though she hasn’t learnt all of the lessons from this experience that one might have hoped.

[Mrs Pollard has] also found a new partner, who she also met online, while playing the fantasy role-playing game World Of Warcraft.

Oh I give up.

Facebook, Jurors and the 'Virtual Veil'

From Guardian.co.uk: 18.11.08:

A female juror was dismissed from a trial after posting details of the case on Facebook and asking friends whether they thought the defendants were guilty.

The woman went against strict rules forbidding jurors from discussing cases with family and friends by posting details of the sexual assault and child abduction trial on the social networking site.

After her actions were discovered, she was removed from the case at Burnley crown court, in Lancashire, and the trial continued with a jury of 11 people.

A Courts Service spokesman said today: "A juror was dismissed from a case on November 18 for discussing a case outside the court."

It’s been quite a while since I’ve posted a Facebook related entry so this one seemed an obvious choice. For what it’s worth, I’ve largely given up with my Facebook-bashing, as I got sick with it falling so invariably on ‘deaf ears’. I get it: the world loves Facebook and only I don’t. Oh well.

The story does, though, highlight interesting behavioural patterns when people are online, particularly when engaged in social networking activities. I think it shows up a serious divide in many people’s brains over regulating their actions in the real world and the online one. Did the juror really think she’d get away with it? Did she think that her ‘online persona’ is so divorced from reality that any actions carried out online would not be attributed to her real ‘human’ person? It’s almost as though some people view their online conduct as being separated from reality by a ‘virtual veil’, which their real, human person can hide behind without fear of being troubled by disagreeable repercussions that flow from the actions of their ‘online person’. You know, something analogous to the 'corporate veil' which derives from the twin pillar characteristics that a company is blessed with: separate legal personality and limited liability. No?! Anyone?! No, my girlfriend wasn’t interested either.

Sidenote: I’ve become more than a little bored with studying the majestic intricacies surrounding the corporate veil and its lifting, piercing or otherwise penetrating for what seems like an eternity in my Company law module. It still amuses me that on the LPC in Business Law and Practice it was merely mentioned in passing with perhaps two sentences dedicated to the topic. On the LL.M, though, we’ve dissected it to absolute death and then some, more or less from the start of term. God, I love academia.

More Facebook trouble afoot?

From vnunet.com 25.03.08

Security researchers claim to have uncovered a new wave of attacks in which profiles on Facebook are used to post images of child torture.

The attack was reported by Chris Boyd, director of malware research at FaceTime Communications.

Boyd claimed in a blog posting to have discovered multiple instances of the attacks in which accounts were stolen and used to post photos on other pages.

"I am still trying to process this, but one of my close contacts has confirmed there is someone going around either hijacking, hacking or phishing user accounts on Facebook, then randomly uploading pictures of child torture to their funwall," he wrote.

I really wanted to put the series of Facebook-related posts to bed by now. It seems like I've been blogging my feelings about the social networking site and other news stories relating to it all too frequently in the last few months. That said, there's a lot that merits discussion when it comes to the darker side of Facebook.

Regarding this latest story, account hijacking is always a big risk for any large site with sign-in facilities. When you get so many users, trouble often ensues: you become a bigger target for hackers, users still insist on choosing insecure passwords, 3rd party applications often bring in unwanted security threats etc. Still, Facebook just seem to be making a bad name for themselves. What with Facebook's plan last year to sell their users' personal information and the multitude of privacy issues that I've highlighted previously on law actually, here's to hoping that the millions of users that flock to Facebook everyday, soon wake up and smell the coffee.

With so many applications being written for Facebook now - coupled with users' propensity to litter their pages with them - it was only a matter of time before trouble reared its head. And let's face it: Facebook is a potential hotbed for all kinds of malware and vulnerabilities to thrive; a digital ambush just waiting for the millions of FB users around the world to sign in and join the party. Arguably, Facebook should be doing more to actively guard against vulnerabilities that its users are subjected to. It would be much better for security purposes if all Facebook apps needed to go through a strict verification process and be 'signed' by Facebook before release. Creativity and freedom for developers must sometimes take second place behind ensuring a safe and secure experience. For instance, what Apple have elected to do with 3rd party applications for the iPhone - since recently announcing they would officially release an SDK for developers - is a credible paradigm that Facebook would do well to mimmick.

Facebook Developments

From vnunet.com 19.03.08:

Facebook is to introduce new controls allowing users to create privacy distinctions between friends, family and colleagues.

The features will give users more control over who sees information stored on their profile pages, choosing which friends can view photo albums, mobile phone number or email address.

Thank God for small mercies. This type of functionality should have been built into Facebook from the word go. For me, this addition is too little, too late, especially given the massive number of users that Facebook now enjoys. The thing I find increasingly concerning is the fact that so many people consider themselves perfectly safe on Facebook; they just don’t see any risks. They consider it a safe place to be and are happy to throw up all manner of personal content with little or no regard to the consequences.

Facebook has been in the news a lot recently. An instant messaging (IM) feature is soon to be rolled out to users allowing real-time collaboration on the typically worthless junk that people post. Oh great.

Also, in this week’s TWiT, Leo Laporte reminded us that Facebook as a social networking site is an ideal means of collaboration for terrorist cells. Granted, the same could be said of many such sites and other online technologies but it’s a fair enough point. Obviously the company should and indeed does engage in some degree of monitoring of users’ content, ready to notify security services if necessary.

Then again, monitoring content for national security threats is one thing. Making use of user-generated content for any reason they see fit, is quite another. Lost London Law Student recently brought another fact to my attention. Quietly hidden away in their terms and conditions, Facebook grant themselves the right to make free with users’ content for virtually any purpose they see fit, including promotional advertising material for the company.

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

LLLS posed a reasonable question: whether such material features on the facebook/iphone advert? Who knows. But do other such sites do this - My Space, Bebo, Flickr and all the rest? Well, so far, I’ve been unable to uncover another social networking site that seeks to grant themselves far-reaching rights to utilise their users’ content in the same way.

Facebook then have the audacity to add later on in the terms and conditions: “We respect the intellectual property rights of others”. You what, Facebook? Hmmm, maybe you do, but clearly not that of your users when it comes to using content for your company’s own ends.

I suppose it’s not so much a major problem – the type of trashy content users typically post to Facebook is scarcely suitable to be used as a national ad – but it’s cheeky nevertheless. And, yes, it’s yet another reason for me not liking Facebook.

As if that wasn’t enough, I noticed that Facebook was mentioned in a news extract on CPD webinars 03.03.08:

Senior police officer, Inspector Chris Dreyfus, was denied promotion to chief inspector level after it was discovered he had previously received a disciplinary warning from his seniors at British Transport Police over posting personal information about his gay lifestyle on the social networking website Facebook.

Oh dear. Sharing information as to your free-time antics is often frowned upon by employers and maybe this was an example of poor judgment over anything else. But still, it remains another reason why Facebook can be more hazardous than helpful.