Digital Discourse

The case of Senior v Police [2013] NZFLR  356 has some interesting things to say about the nature of discourse on Internet social media platforms – Facebook in particular.

The case was about a breach of a protection order. Senior was subject to a domestic protection order. The protected person was his former partner. One of the terms of the protection order required Senior “not to engage or threaten to engage in other behaviour including intimidation or harassment, which amounts to psychological abuse of any person”.

Senior placed a post on his Facebook page. It was abusive of his former partner. She was not one of his Facebook friends so would not have automatically received notification of the post and its content. However, the niece of the protected person was one of Senior’s Facebook friends and drew the attention of the protected person to the post. She complained to the Police.

Senior was convicted and took the case on appeal. The issue was whether or not the appellant had, in legal terms, the appropriate mens rea, or intention, or reckless state of mind when lodging this abuse on Facebook.

The Judge, Justice Fogarty, held that very strong  personal abuse directed at a former partner, placed on Facebook, read by a large number of friends, some of whom would inevitably have contact in the natural social network with the person being abused, was at the very least highly reckless.

In coming to this conclusion the Judge took an interesting path and took judicial notice  of the fact that persons who use Facebook are very aware that the contents of the Facebook are often communicated to persons beyond the “friends” who use Facebook. When information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of “friends”. … It is somewhat improbable to say, which was not said here, “Oh, I never thought it was possible that the person I was abusing could possibly have known about this”.

Judicial notice is a tool used by Judges to recognise certain well known facts without expert evidence. Often judicial notice is deployed in cases of well  known and well recognised technologies. Judicial notice, for example, has been taken of the accuracy of a GPS device without the necessity of proof of accuracy or how it works.

The observations by Fogarty J constitute a technologically suspect assertion that ignores the nuances of privacy settings and the way in which a user may configure his or her page. For example, depending upon the privacy settings a user may not communicate content to anyone, but only receive messages.

But if we accept the very bald finding of Fogarty J it sends an interesting message about the nature of discourse using social media platforms which rely on the ability to share information among a coterie of, for want of a better word, associates.

Discourse has always involved coteries be they another individual or group of individuals. Oral discourse and communication by writing provide examples. In the past communication by letter between individuals carried a high expectation of privacy. On occasion, however, letters may be circulated to others or a group of others. But again the expectation was that publication would be limited to the coterie.

Edmund Plowden, whose case reports were published in 1571, clearly had circulated manuscript copies of his reports within a coterie of lawyers in the Inns of Court. It was a fear that they might find their way into the hands of a printer and be published without Plowden’s permission or supervision that prompted him to undertake the printing of his reports himself. The aversion to print was also expressed by John Donne whose controversial tract on suicide Biathanatos  was circulated within a coterie but Donne forbade its printing or its burning – at least during his lifetime.

The printing press enabled the wide dissemination of ideas and communications to a wider coterie – the public. Indeed the word “publish” means to make public. The discourse that followed in the form of tracts, arguments and counter arguments were a characteristic of the political and religious landscapes after the sixteenth century. This outpouring of discourse naturally attracted the attention of the authorities who in various ways attempted to moderate or suppress the discourse. One way was to attempt to regulated the technology in the form of the Licensing Acts from 1662 to 1696, the expiry of which led to the debate about the right to copy, culminating in the Statute of Anne in 1710.

The importance of printed discourse was recognised by the fledging United States Republic in the First Amendment to the Constitution prohibiting government interference with the freedom of speech or the press. The freedom of expression is incorporated into section 14 of the New Zealand Bill of Rights Act 1990 as the right to receive and impart information – a section that clearly recognises the importance of discourse and the exchange of ideas.

Following the printing press other forms of communications technologies such as radio and television have provided the ability to enhance the nature of discourse, although the degeneration of 21st century mainstream television content may well challenge that proposition.

What the internet and digital technologies enable is a form of publication or dissemination that has two elements.

One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender.

Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before.

In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and photocopiers. Generally  dissemination was very small.

Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users.

News organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists.   Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This characteristic has been recognised by politicians and the recent use of Twitter by President Trump demonstrates the difficulty of articulating complex issues of policy – indeed some might say that any form of coherent articulation beyond 140 characters was beyond the capabilities of Mr Trump.

Internet based publication or dissemination exacerbates the quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.

It is possibly the potential for exponential dissemination to which Fogarty J refers in Senior and upon which he bases his sweeping assertion that people who post to Facebook know and therefore intend (or are reckless) that it will go further.

This assumption – and it can only be that – underlies The New Zealand Herald editorial of 7 January which laments the apparent lack of understanding on the part of a digital native who posted a comment on a social media platform and who then took the post down when she found “people were going a bit overboard with threats and racist comments”. Interestingly the editor asks the rhetorical question ” How many years of living on this web will it take before we treat it with more caution?”

The question is no longer relevant. That  particular horse has well and truly bolted, and despite the fact that the Herald, like so many other news outlets, now has an online presence, the editor fails to have grasped the fact that the medium itself – rather than its content – is the driver of changed attitudes to debate and indeed communication. As Marshall McLuhan said “we shape our tools and thereafter our tools shape us”.

For digital natives the verbal or face to face communication methods of the pre-digital paradigm are passe. Social media platforms enable communication with a wider coterie of digital acquaintances who may, in Facebook for example, be designated with the word friends.

In the same way that verbal discussions can develop a certain amount of heat, and often the way to resolve such confrontations is to disengage, so it is with social media platforms. The digital native in question simply disengaged.

What the Herald editor has done has been to apply the pre-digital concept of coterie communication to a paradigm that dictates a re-evaluation of the nature of discourse and of the expectations of information and its communication. Digital natives are aware that their posted information MAY be shared and it MAY be that information will go viral. Whether they actually intend that outcome is another matter and to ascribe that intent merely by posting is perhaps a bridge too far. Digital technology have redefined our expectations and our use of and our relationship with information.

In the case of the digital native in the Herald article the digital paradigm enabled distribution of her content to a much wider coterie than she initially expected. The level and quality of the debate increased exponentially.  In these days of unreason, many of the attacks were ad hominem (or perhaps ad feminam would be more accurate). It is a sad reflection of discourse that the messenger rather than the message becomes the target.

The digital native, as I have observed, disengaged and walked away from the extended coterie –  a sensible thing to do. She had made her point and exercised her right to freedom of expression.  Others exercised theirs. Had she suffered serious emotional distress as a result of the various posts which she received, she may have had a remedy under the Harmful Digital Communications Act 2015. But that is something of a nuclear option. But she chose rather to disengage.

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