Is free speech protected online?

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The short answer is - not really. Websites that allow user comments or participation are largely owned by private companies which reserve the right to regulate and censor content but are not obligated to. Some companies like Twitter take a completely hands-off stance, others like eBay have wide-ranging and very detailed policies about what can and can't be said or done.

Wired has done an interesting piece on the issue of free speech online, here are a few choice excerpts:

Companies in charge of seemingly public spaces online wipe out content that's controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China. They serve as prosecutor, judge and jury in handling disputes behind closed doors.

The governmental role that companies play online is taking on greater importance as their services - from online hangouts to virtual repositories of photos and video - become more central to public discourse around the world. It's a fallout of the Internet's market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms.

Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.'s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth.

Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that - far from promoting smoking - the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later.

"I never thought of it as a photo of a smoking kid," Dors said. "It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete."

Although most of the individual cases where censorship is applied inappropriately are eventually cleared up, the vague guidelines that say what is acceptable and what isn't are open to wildly varying interpretations and are especially confusing when they differ from site to site.

Users get caught in the crossfire as hundreds of individual service representatives apply their own interpretations of corporate policies, sometimes imposing personal agendas or misreading guidelines.

To wit: Verizon Wireless barred an abortion-rights group from obtaining a "short code" for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc.'s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints.

So should there be some sort of government regulation, bringing with it a raft of bureaucracy and politicisation? Or should these private companies have clearer guidelines and grievance processes, possibly agreeing on some independent standard?

Marjorie Heins, director of the Free Expression Policy Project, questions whether the private sector is equipped to handle such matters at all. She said written rules mean little when service representatives applying them "tend to be tone-deaf. They don't see context."

At least when a court order or other governmental action is involved, "there's more of a guarantee of due process protections," said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users' rights are limited to the service provider's contractual terms of services.

Jonathan Zittrain, a Harvard professor who recently published a book on threats to the Internet's openness, said parties unhappy with sensitive materials online are increasingly aware they can simply pressure service providers and other intermediaries.

"Going after individuals can be difficult. They can be hard to find. They can be hard to sue," Zittrain said. "Intermediaries still have a calculus where if a particular Web site is causing a lot of trouble ... it may not be worth it to them."

Unable to stop purveyors of child pornography directly, New York Attorney General Andrew Cuomo recently persuaded three major access providers to disable online newsgroups that distribute such images. But rather than cut off those specific newsgroups, all three decided to reduce administrative hassles by also disabling thousands of legitimate groups devoted to TV shows, the New York Mets and other topics.

Gordon Lyon, who runs a site that archives e-mail postings on security, found his domain name suddenly deactivated because one entry contained MySpace passwords obtained by hackers.
He said MySpace went directly to domain provider GoDaddy, which effectively shut down his entire site, rather than contact him to remove the one posting or replace passwords with asterisks. GoDaddy justified such drastic measures, saying that waiting to reach Lyon would have unnecessarily exposed MySpace passwords, including those to profiles of children.

Leading online companies are handling these issues in different ways.

YouTube has policies against showing people "getting hurt, attacked or humiliated," banning even clips OK for TV news shows, but how is YouTube to know whether a video clip shows real violence or actors portraying it? Either way, showing the video is legal and may provoke useful discussions on brutality.

"Balancing these interests raises very tough issues," YouTube acknowledged in a statement.
Unwilling to play the role of arbiter, the group-messaging service Twitter has resisted pressure to tighten its rules.

"What counts as name-calling? What counts as making fun of someone in a way that's good-natured?" said Jason Goldman, Twitter's director of program management. "There are sites that do employ teams of people that do that investigation ... but we feel that's a job we wouldn't do well." Other sites are trying to be more transparent in their decisions.

Online auctioneer eBay Inc., for instance, has elaborated on its policies over the years, to the extent that sellers can drill down to where they can ship hatching eggs (U.S. addresses only) and what items related to natural disasters are permissible (they must have "substantial social, artistic or political value"). Hypothetical examples accompany each policy.

LiveJournal has recently eased restrictions on blogging. The new harassment clause, for instance, expressly lets members state negative feelings or opinions about another, and parodies of public figures are now permitted despite a ban on impersonation. Restrictions on nudity specifically exempt non-sexualized art and breast feeding.

The site took the unusual step of soliciting community feedback and setting up an advisory board with prominent Internet scholars such as Danah Boyd and Lawrence Lessig and two user representatives elected in May.

The effort comes just a year after a crackdown on pedophilia backfired. LiveJournal suspended hundreds of blogs that dealt with child abuse and sexual violence, only to find many were actually fictional works or discussions meant to protect children. The company's chief executive issued a public apology.

The internet is certainly a whole area of law that has yet to be tested very far, if indeed its possible for the legal systems we have in place to cope with the issues it raises at all. It's still very much all up in the air in the US. As for Australia, well here it's still illegal to put music from a CD you own onto your iPod. We haven't even got our copyright laws sorted yet. Creative Commons? Huh?

Read the full Wired article here.