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Social Media and the Law

I've made the trip to a very cold and foggy Gießen in central Germany for a conference on what could be loosely described as the political dimensions of Web 2.0: "Das Internet zwischen egalitärer Teilhabe und ökonomischer Vermachtung". I'll be speaking later this morning, but we begin with a keynote by Karl-Heinz Ladeur. All of this will be in German, so blogging it in English will make for an interesting experience...

He begns by pointing out that new media are understood first through the paradigms of the old - TV dramas were filmed theatre, TV news were a reading-out of print news. The same is true for media law; it tends to transfer and tinker with old approaches in order to deal with new media, more or less successfully. This also foregrounds the individual, and places the medium as a means for the individual to communicate - which is not necessarily inappropriate, but takes focus away from the development of independent, indigenous principles in new media forms. (Another example is how long it has taken for arts publics to be treated differently - e.g. in terms of decency and pornography - from other publics. The juridical treatment of political publics is a further example here, as is the treatment of the private matters of celebrities.)

The fundamental change in media structures brought about by the Internet is critical here - Karl-Heinz notes the emergence of a new Net public which must be dealt with in new ways. Tim Berners-Lee has recently called for a new 'Web science' to deal with research into Web phenomena, and perhaps this needs to be extended to the legal domain as well - taking in both the technologies themselves and the people using them. The role of social media developments is especially interesting here, given the rapid transformations in media use which are taking place.

The phenomenon of the self-reinforcement of particular stories which takes place using the Net is important here - the way that individual news and rumours spread rapidly and become very well known out of virtually nothing, if they trigger the interest of the Net public; this can have positive (instant responses) or negative (instant panic) consequences which do not occur in the same way and with the same speed in more conventional, gatekept media. Instead, the network spread of such phenomena is not linked to any one originator: the appropriate analogy here is not with news media, but with everyday gossip - and interestingly, gossip has been addressed by law far less comprehensively than has misinformation in 'official' media. If such gossip-style transmission of information is becoming the driver of communication processes online, then, perhaps we do need the legal framework to address it. (Karl-Heinz notes the U.S. phenomenon of rating and discussing secondary and tertiary teachers using social media tools as one example here, and attempts to curb the worst excesses through legal action.)

New rules for communication are emerging here, then, and the law needs to react to this. One approach is to build on existing media law, but Karl-Heinz says that this is unlikely to be particularly successful; on a meta-level, perhaps it would be better to inoculate, to irritate, the inherent self-organisation processes which already exist in social media in order to get these media forms themselves to evolve appropriate rules. This would be more similar to the voluntary codes of ethics in many media sectors - but it must be recognised that the networked organisation of social media still works differently from the more hierarchical structures of broadcast media, for example.

One key field to address here is privacy, where solutions could possibly draw on copyright protection mechanisms: rather than focussing on protecting the data of the individual, on a person-by-person basis, perhaps it would be possible to develop a collecting agency-style collective privacy enforcement agency - an information broker - fighting for privacy rights of user by bundling their individual rights and/or negotiating cases where the use of private data is permissible and in the interest of private individuals (in order to ensure transparency of financial transactions, for example).

Another suggestion relates to eBay and similar sites, where personal rating systems build on the wisdom of crowds to establish personal trustworthiness ratings. Such ratings are complicated today by the fact that making negative ratings could lead to court cases or other repercussions which are not worth the risk if the original transaction covered only small amounts of money in the first place. Karl-Heinz suggests the development of self-organised 'cybercourts' which could reduce such risks by acting as a middle layer in person-on-person buyer/seller ratings, and address exceptionally positive or negative ratings. (This is perhaps not unlike the way that travel advisory sites like IGoUGo act as a middle layer capturing and accumulating the wisdom of tourists without creating the risk that any individual rater may be sued by a hotel operator unhappy with having received a negative rating.)

Karl-Heinz also translates this again to the generation of collective knowledge in other ratings sites, for example for teachers. He suggests that it should be possible to generate 'metarules' for the creation of reliable and self-organising ratings systems. In particular, problems exist here if the number of total ratings for any one teacher is low (allowing for unrepresentatively high positive or negative ratings to emerge), and if background checks on raters are not carried out (allowing non-students to rate teachers who they have never been taught by).

Further, there is a need to address the freedom of expression in chat rooms and public fora. There is relatively little legal precedent here - when is it appropriate to remove a user from a discussion for infringing the standards of the space, for example? Long-time participants in a forum will have developed a sense of the standards applied to a forum space, and a random booting of users out of such chat spaces would therefore be problematic unless there is an upfront notice that forum operators choose to exercise their right to randomly remove participants whose views or conduct they do not agree with. (Again, cybercourts could be used to manage conflict here.) In a European tradition, this could be regarded as a new form of protecting civil rights in private domains.

This applies especially also to the freedom of expression in blogs. In mainstream media, there is a long history of dealing legally with borderline cases (where, for example, misinformation is spread in good faith) - in blogs, which exist in between public and private, that is not the case yet. Can existing media rules be transferred to blogs, or is there a need for new - perhaps considerably looser - rules to be developed? In social networking sites, similar questions apply; here, again, the development of internal rule sets should be facilitated if possible.

Finally, the role of search engines must also be considered further - here, for example, the effects of information presentation as structured by search algorithms are critical, and there may be a need for more transparency in such matters (to avoid the gaming of search rankings, for example); at the same time, the commercial right of search providers to keep their internal processes secret must also be respected.

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