For some time now the trend du jour among many media outlets has been to ban news comments -- then insult reader intelligence by proclaiming this is being done out of a deep-rooted love of "conversation" and "relationships." You see, these websites aren't banning comments because they're too lazy or cheap to weed out spam and trolls, but because they love you. These sites aren't outsourcing all human interactivity to Facebook because bean counters can't monetize quality on-site discourse in a pie chart, they're doing it because they care so very deeply about their community.
Why, oh, why can't you people understand that giving the middle finger and a shiny new muzzle to your entire readership is an act of love?
With this being the intellectually-stunted direction of the entire online media sector, it's kind of refreshing to see websites that actually try to solve problems and give a flying damn about quality on-site community. Case in point: albeit overshadowed by some notable downsizing at the outlet, Canada's The Globe and Mail this week announced that the website will be trying something new: acknowledging that ye olde, maligned news comment section is worth saving, while building a new system that leans on the community itself to keep discourse spam-free and relatively civil:
"Our new platform asks users to review other comments made on the site before posting their own. Each comment is reviewed by the community for quality and civility. This peer-to-peer moderation process incentivizes users to be more respectful to each other regardless of how different their opinions may be.
The decision to adopt Civil Comments was made after an eight-week trial that ran on the Politics section of our website. We noticed that the number of comments for that section remained stable during the test period while the percentage of comments that were either rejected or flagged dropped significantly, pointing to an overall uplift in the quality of conversations."
Shockingly, during the Globe and Mail's trial, they found that the very same communities most of these sites claim are utterly irredeemable and untameable, actually participated in working to make the comment section better:
"We understand how passionate our users are and we welcome different views and opinions. But we also recognize that sometimes things can get out of hand.
We also believe that the vast majority of our community knows how to play fair. In fact, our trial showed that, with a few exceptions, our readers were willing to adopt this new approach in order to elevate the tone of the debate within comments. We were thrilled to see that."
That shouldn't really be surprising. We've noted time and time again that it doesn't really take much effort to improve comment discourse, and that the real problem was that websites weren't even god-damned trying. In fact, one study showed that just having someone from the website occasionally show up and treat commenters like human beings had a profound impact on the quality of the comment section. Imagine what you could actually accomplish if you threw even a modest amount of time and money at the issue?
But then again, many websites aren't giving up on comments because it's really all that hard to save them, they're giving up because it's just easier and cheaper to ignore these users completely, even if on-site conversation increases impressions and time spent on-site. The reality is that many editors and websites just really like the idea of returning to the bygone era of letters to the editor where they get to control the direction of public discourse, even if that ignores the very bidirectional nature of the internet itself. They also can't admit they like having corrections to story errors in not quite such a conspicuous location.
In reality, the push to kill news comments is largely thanks to laziness and a desire for less public transparency. Editors can't admit this, so instead we get obnoxious missives claiming that entire user bases are being gagged out of a deep-rooted love of engagement. Hopefully more sites will follow The Globe and Mail's lead and try a little something called actually giving a damn.
from the this-muzzle-shows-how-much-I-love-you dept
For a while now the trend du jour in online media is to not only block your readers from making news story comments, but to insult their intelligence by claiming this muzzling is driven by a deep-rooted love of community and conversation. NPR, for example, muted its entire readership because, it claimed, it "adored reader relationships." Reuters and Recode, in contrast, prevented their own users from speaking on site thanks to a never-ending dedication to "conversation." Motherboard similarly banned all on-site reader feedback because it greatly "values discussion."
There's a number of reasons to ban comments, but few if any have anything to do with giving a damn about your community. Most websites, writers and editors simply don't want to spend the time or money to moderate trolls or cultivate local community because it takes a little effort, and quality human discourse can't be monetized on a pie chart. Instead, it's easier and cheaper to simply outsource all public human interactivity to Facebook. In addition to being simpler, it avoids the added pitfalls of a public comment section where corrections to your story errors are posted a little too visibly.
Few outlets can actually admit any of this, so instead we get bizarre platitudes about how moving bi-directional website interactivity backward is some kind of ingenious media evolution. Case in point: IDG last week joined the fun and announced that all of its media outlets (Macworld, NetworkWorld, PCWorld, etc.) would be removing news comments moving forward. According to the company, this change is a reflection of IDG's ongoing commitment to feedback:
"At IDG, we’ve always valued and welcomed feedback from our readers, and that’s something that will never change. What is changing, however, is one facet of how we get your feedback.
Again, nothing quite says we "welcome feedback" like preventing all public, on-site feedback. Just like other news outlets, IDG insists that shoving interested community members over to social media is the same thing as retaining an on-site community:
"This change was made for a couple of important reasons. First, more and more of you are already communicating with us, and with one another, via social media, where our editors and reporters are posting content and interacting with readers throughout the day.
Second, while we’ve always valued comments, we’ve also had to deal with the reality of managing spam and policing inappropriate comments—comments that don’t reflect the professional nature of our audiences and diminish the value of community interaction. Moving the discussion to social media obviates those issues."
Well for one, this idea that managing spam and trolls is some kind of sisyphean impossibility is nonsense. You'll find countless websites (this one included) where spam and trolling is minimized and public interactivity is still protected (often by the community itself). In fact, some studies have suggested that just having website employees show up and give a damn can have a dramatic, positive impact on your local community. If you see consistent trolling and spamming in news comments it means somebody, somewhere doesn't give a shit. Pretending otherwise is a cop out your readership can see through.
This pretense that social media interactivity is the same as more niche on site conversation is also problematic. As feedback is offloaded to social media, we're seeing an overall reduction in transparency when it comes to news reader interaction. Many social media users exist in cordoned off areas where they only have a limited view of the conversation (protected Tweets, etc), which harms transparency. But that's the whole point for many editors: a return to the "letters to the editor" era where you get to control the conversation, even if it comes at the cost of users spending less time on your website.
All of that said, stand still so I can kick you repeatedly in the shin out of my deep-rooted love of your ability to walk.
from the this-muzzle-represents-my-love-for-you dept
For several years now we've documented the rise in websites that shutter their comment sections, effectively muzzling their own on-site communities. Usually this is because websites are too lazy and cheap to moderate or cultivate real conversation, or they're not particularly keen on having readers point out their inevitable errors in such a conspicuous location. But you can't just come out and admit this -- so what we get is all manner of disingenuous prattle from website editors about how the comments section is being closed because they just really value conversation, or are simply trying to build better relationships.
"After much experimentation and discussion, we've concluded that the comment sections on NPR.org stories are not providing a useful experience for the vast majority of our users. In order to prioritize and strengthen other ways of building community and engagement with our audience, we will discontinue story-page comments on NPR.org on August 23."
Again, nothing says we "love and are engaged with" our community quite like preventing them from being able to speak to you on site (this muzzle represents my love for you, darling). The logic is, as Montgomery proceeds to proclaim, that social media is just so wonderful, on-site dialogue is no longer important:
Social media is now one of our most powerful sources for audience interaction. Our desks and programs run more than 30 Facebook pages and more than 50 Twitter accounts. We maintain vibrant presences on Snapchat, Instagram and Tumblr. Our main Facebook page reaches more than 5 million people and recently has been the springboard for hundreds of hours of live video interaction and audience-first projects such as our 18,000-member "Your Money and Your Life" group.
And while those are all excellent additional avenues of interaction and traffic generation, it's still not quite the same as building brand loyalty through cultivating community and conversation on site. By outsourcing all conversation to Facebook, you're not really engaging with your readers, you're herding them to a homogonized, noisy pasture where they're no longer your problem. In short, we want you to comment -- we just want you to comment privately or someplace else so our errors aren't quite so painfully highlighted and we no longer have to try to engage you publicly. All for the sake of building deeper relationships, of course.
Montgomery talked a little more about NPR's decision on Twitter, where Mathew Ingram (one of roughly three writers I've found who gives two flying damns about the negative impact of this trend) politely pondered if NPR really tried all that hard before giving up:
@scottmdc I appreciate that. But do you think the scale shifted in part because you didn't prioritize them?
Except, as we've noted time and time again, studies show that it's not really that hard to cultivate a healthier on-site comment section simply by showing up. Just having a writer or editor show up and treat readers like human beings dramatically improves the overall tone of the conversation. This isn't something that requires all that much time and effort. But because editors can't clearly quantify the benefits of giving a damn in this fashion, they've decided it's easier and cheaper to just give up.
They're getting rid of a great community of discussion. It's the best forum I've known, with people from all walks of life discussing the news with a moderate amount of intelligence, and a healthy dose of wit. I'm pretty upset. After the comments go, I won't visit NPR much anymore. There's not much content compared to other sites. It was the discussion that kept me coming back.
Another reader offers a more blunt take:
And the "public" in public radio goes away, except for the pleas for money. There's no interaction any more, emails are ignored, Twitter is useless, and Facebook is a gross invasion of privacy. Sad NPR. And worse that the supposed advocate for the listener backs the decision. Perhaps if NPR had actually involved itself with the commenting instead of isolating and offshoring it, you would have found that things would have worked better for you.
Sadly, like Bloomberg, Recode, Reuters, Popular Science, and other sites, NPR and Montgomery round out the announcement by claiming that muzzling your community somehow illustrates a love of "deeper relationships" and "conversation":
In the eight years since NPR first launched its online comment section, the world of social media has changed dramatically, as has NPR's digital presence. We're constantly asking ourselves where we can create the best dialogue with you and how we can deepen that relationship. It's a question we will keep asking because the way we communicate online will keep changing. We're looking forward to continuing the conversation.
That sounds so much lovelier than "nobody in our writing or editorial staff wants to take the time to cultivate local on-site community," "we're lazily cutting corners" or "we don't like having our mistakes highlighted publicly right below our articles," don't you think?
Last week, new New York Times public editor Liz Spayd said something completely and utterly crazy: she suggested that news outlets and websites should actually listen to and interact with their visitors in news comment sections. Given this is the age where most "enlightened" media outlets are now closing their comment sections and pretentiously pretending it's because they "value conversation," Spayd's comments were treated like the incoherent ramblings of a mad woman on some fronts, people claiming actually caring about readers was a form of "phony populism" and the "willfully naive" rhetoric of a bygone era.
But we've noted time and time again that by muzzling them or shoveling off your community to the homogonized blather of Facebook, you're pretty clearly saying you don't think your audience really matters. Countless editors refuse to believe this, by and large because nobody at a multi-million dollar media empire wants to actually have real conversations with the dirty plebeians they profess to be so selflessly dedicated to. The entire mechanism should be demolished, they argue, because commenters are mean and say bad things -- ignoring studies suggesting this can be easily fixed by giving a damn.
Nick Denton, likely overjoyed to talk about something other than Peter Thiel, last week indicated he's among this "willfully naive" minority that believes news comments are worth saving. Regardless of whether or not you like the Gawker empire, Denton makes it clear that maintaining communication with the company's customers is not only common sense, but embracing on-site comments makes money:
"The key is to distribute the moderation, to make every editorial team responsible for the discussions that their stories instigate. It’s not that hard—though it took several years and several million dollars for us to get it right. The commitment to quality discussions was one of the smartest decisions we made. In economic terms, we see a payoff not just in greater editorial leverage, but in time spent on page. On mobile, for instance, we outperform the other publishers by more than half: 81 seconds compared with a Google Analytics benchmark of 53 seconds. I think that’s largely because the pages are more interesting, for longer."
Again, it's worth noting that while Gawker spent a significant amount of money on its Kinja commenting platform with some mixed results, data has suggested that just having writers show up to talk can have a profound impact on the quality of comments. But Denton also focuses on the fact that stifling the inherent bi-directional communication nature of the Internet is just dumb, and many outlets just don't like comments because they advertise errors made in their reporting or commentary:
"Above all, this is just the way that Internet news should be. Why wouldn’t you want to tap the opinions and expertise of your readership? Unless you are embarrassed by them."
Despite all the media's bluster about social media being an adequate replacement for an "unsavable" comment section, the reality is many bigger media brands just don't like having real human beings pointing out when they're wrong in such an obvious and public fashion. If you've spent any time writing on the Internet, you probably know that the comment section, warts and all, is also stocked with some very bright people with wide ranging expertise who'll often provide invaluable corrections. Possibly right after they make a joke about your mom, but still.
Throwing out the entire concept of on-site comments because a jackass said something mean or pointed out you were wrong about something has never been much of a solution. Subsequently claiming you muzzled your customers because you wanted to "build relationships" and "value conversation" only informs these muted community members you also think they're all incredible, irredeemable morons. If that's the brand message you're actually pursuing in your quest to nab more advertising eyeballs? Phenomenal job.
from the flogged-in-the-public-square-for-caring dept
For some time now, the opinion du jour in "enlightened" media circles has been to treat the news comment section (aka the customers who visit your website daily and directly) as some kind of irredeemable leper colony. One that should be nuked from orbit before the infection spreads. As such, we've seen website after website proudly crow about how they've given up on allowing site comments because a handful of posters are obnoxious, hateful little shits and the social media age means more direct community interaction is passe.
These announcements usually come hand in hand with all manner of disingenuous platitudes from the editorial staff, like we killed comments because we wanted to "build relationships," or we muzzled our entire user base because we just "really value conversation." Usually, this is just code for websites that are too lazy and cheap to moderate, weed and cultivate their community garden, and find it convenient to argue that outsourcing discourse to the homogenized blather realm of Facebook is an improvement.
Since this trend began a few years back, you'll occasionally see an editor stop and realize that these disregarded masses are, warts and all, the life blood of a community -- and preventing them from publicly interacting on site is actually a step backwards. Case in point is new New York Times public editor Liz Spayd, who this week asked a bizarre and outlandish question: what if websites were to treat these people like actual human beings and the comment section as something worth saving? Says Spayd:
What The Times and most other newsrooms mostly do now is not so much listen to readers as watch and analyze them, like fish in a bowl. They view them in bulk, through statistics measuring how many millions of “unique” users clicked on content last month, or watched a video, or came to the site multiple times, or arrived through Facebook.
What would prove more fruitful is for newsrooms to treat their audience like people with crucial information to convey — preferences, habits and shifting ways of consuming information. What do they like about what we do and how we do it? What do they want done differently? What do they turn to other sites for?
This isn't really complicated. Spayd refreshingly realizes that the rise of the comment troll is in many ways the fault of websites themselves. Writers and editors simply don't want to cultivate real conversation, because it's hard work and their current analytical tools can't monetize discourse quality. Instead, websites have begun to approach the end user relationship like the owner of a prison colony who believes the entire sordid affair can only be improved by a good, industrialized delousing or the outsourcing to bigger, meaner prisons.
In reality studies have found that comment sections can be dramatically improved -- simply by treating site visitors well and by having somebody at the website make a basic effort at fundamental human-to-human communication:
One surprisingly easy thing they found that brought civil, relevant comments: the presence of a recognized reporter wading into the comments.
Seventy different political posts were randomly either left to their own wild devices, engaged by an unidentified staffer from the station, or engaged by a prominent political reporter. When the reporter showed up, “incivility decreased by 17 percent and people were 15 percent more likely to use evidence in their comments on the subject matter,” according to the study.
With the daily struggle to produce more and more content in a sea of more and more competitors, it's simply easier to pretend that the comment section doesn't matter.
But what's being pushed as enlightened evolution by editors is just willful obliviousness driven by lazy thinkers, incapable of embracing anything that can't be clearly, graphically monetized. It's thinking built at media empires with the multi-million dollar backing of giant conglomerates, where actual human interaction is already more easily obscured by the daily shuffle of incessant bi-coastal conference calls. Since the comment section is perhaps the most valuable source of corrections, it's also a wonderful way for such giant companies to avoid advertising that their writers may have made a mistake.
I've been at the heart of one smaller, community-driven website since 1999 (DSLReports.com) and a writer here at Techdirt for several years, so it's perhaps more obvious to me that scrappier upstarts don't have the luxury of telling their entire community to piss off to Twitter if they want to leave public feedback.
Not too surprisingly, Spayd's idea was received poorly by some in the news media who believe public interaction with readership on site is either beneath them or wholly irrelevant in the social media era. MIT Technology Review Editor Jason Pontin was quick to declare that Spayd's comments reflected a "disastrous first outing" as the Times' new public editor, going further to suggest that anybody who gives a damn about public comments has the "wrong priorities":
A disastrous first outing. Show me an editor who cares about comments, and that's someone with the wrong priorities. https://t.co/3JrFw8L9HS
After writing that the paper is trying to move in the direction of more comments, she adds that the speed at which it has done so has been hindered by "other newsroom priorities." I’m not sure what those other priorities are, but to spend your first column focusing on something like a comments section is another sign that Spayd’s priorities are bizarre and even—this will sting—out of touch.
Yes, how gauche. As we all know by now, you don't build community by treating site visitors well, you build community by telling them all to fuck off to Facebook, where their infectious, intellectual detritus can be more easily ignored.
Many of you likely know about Glassdoor.com, which is a website used by both employers and propsective employees for recruiting, job applications and reviews of companies by former employees as to what it's like to work at a given company. As with any source of crowdsourced reviews, it is not without its pitfalls and controversy, but most of that has to do with different methods by which companies and former employees try to promote or slam a partricularly workplace with anonymous reviews. Anyone who has done job placement research, however, knows how valuable the site is.
Yet the use of anonymous reviews, as is typical of other sites, breeds discontent amongst some. Typically you will hear complaints from companies being reviewed negatively about these anonymous reviews being unfair, untrue, or ginned up by a limited number of ex-employees. That's usually the end of it. Occasionally, however, you get a company that wants to sue over reviews like this. California law firm Layfield & Barrett is apparently one such firm.
California trial attorney Philip Layfield, joined by his firm, has filed a defamation claim against 25 John Does over anonymous comments they left online about Layfield, his current firm of Layfield & Barrett, and his former firm of Layfield & Wallace. Our network of tipsters is mighty, and we’ve gotten our hands on a third-party subpoena served upon Glassdoor.com, a jobs and recruiting website, that allows users to post anonymous reviews of places they are current or former employees of, in order to provide an assessment of the working environment for job seekers. The subpoena seeks the identifying information of several users who have taken to this anonymous online forum to complain about their allegedly miserable work.
You can see the full subpoena below, but it does indeed seem that some of the reviews left for the firm were quite nasty. Titles for some of the posts include "Deceptive, Unethical, Poorly Managed, No Sense Of Direction," "Working Here is Psychological Torture," and my personal favorite "For the love of God, do NOT work here." One can understand why an employer would be unhappy about the existance of these reviews.
Suing over them, however, is likely to be as feeble as it is misguided. This is typically the part of the post where we talk first about the difficulty of suing successfully over these types of opinion-based reviews, move on to then talk about the importance of sites like Glassdoor.com honoring its users' anonymity, before finally coming around to explain that the Streisand Effect will now take hold of this whole thing, with the lawsuit serving mostly to catapult the negative opinions the firm disliked into the forefront of more people's minds than otherwise would have been. And that would usually be the end of the post.
That is not the end of this post, in part because Glassdoor has promised to fight the attempt to out its anonymous contributors, but even more so because Philip Layfield agreed to comment on the story for Above The Law, and Oh. My. God.
With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when the interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.These people are going to have to answer for their conduct and we will shine a light on this very cowardly practice that has become an epidemic. People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law. Ultimately, future employers will have to decide whether they want to employ people who post false and hateful information about former employers. The same way that Glassdoor operates as a hate forum for disgruntled employees, employers have a right to know information about job applicants.
Unfortunately, most employers are too busy to spend time posting negative information about former employees on job sites, although that would probably do a lot of good for society. For example, I would love to post information about employees who graduated law school, but can’t put two sentences together, or those that are sick at least one day every week.
We will not give any further comments until the case is over.
Imagine yourself for a moment as someone who was willing to give Layfield and his firm the benefit of the doubt thus far. Are you any longer? Probably not. This comment does nothing to verify the accuracy of the complaints at Glassdoor, but it does solidify them in the mind to some degree, does it not? In addition to the demeaning nature with which Layfield addresses his former employees, the aggrandizing tone with which he describes his own firm, and his silly labeling of Glassdoor as a hate forum, he does us all a service by outlining his desire to have employers act every bit as vindictively towards former employees as he complains about in reverse. That kind of delicious hypocrisy isn't in rare supply, of course, but that doesn't make it any less scrumptious to behold.
And, to the previous point, whatever Streisand-y Effect might have resulted from the legal action the firm had already taken will now be supercharged by this boorish comment at a well-read legal industry blog. And here at Techdirt. Any likely many other places as well. If the goal was to make the firm a more attractive place to work, it's difficult to think of a better strategy than this to achieve the opposite.
A couple weeks ago, we wrote about a phone call (and follow up emails) we received from Homeland Security indicating an interest in sending us a subpoena, asking for any identifying information we had on a commenter. That commenter had posted a (somewhat ridiculous) comment, in response to another story, about a guy who had nearly a quarter of a million dollars taken by him by Customs and Border Patrol (CBP) under civil asset forfeiture rules. The commenter, somewhat weirdly, suggested that the guy who had this money stolen might "know people" who could murder the agents who took the money. It was clearly not a threat. It was random idle speculation.
But, for whatever reason, the sister agency of CBP, called Homeland Security Investigations (HSI -- which was formerly Immigration and Customs Enforcement, or ICE), decided that it wanted to subpoena the information on the commenter. Through our lawyer, we noted that we had serious First Amendment concerns about the chilling effects this might have if even weird comments like that lead to federal law enforcement knocking on people's doors. We explained that we were happy to look over the details, but in the absence of more information suggesting a real and legitimate threat, we were inclined to resist complying with the subpoena to protect our users. We also noted that we were publishing the info on Techdirt at the time, given a similar situation with Reason's website came with an almost certainly unconstitutional gag order, and we wanted to explain what was happening prior to any similar order.
Some people have asked for an update on the situation and it's this: nothing has happened. We haven't received any subpoena at all. In fact, we've received no further communications at all from Homeland Security. It is possible that something is still coming, but we hope that the agents at HSI and anyone else involved with this have realized that this is not a worthwhile activity. We'll keep you updated, should anything change.
Earlier this week, one of our writers, Tim Cushing, had a story about yet another abuse of the civil asset forfeiture procedure. You can read that whole story for the details, but the short version is that US Customs & Border Patrol, along with Hancock County (Indiana) Sheriff's Dept. officers, decided to seize $240,000 in cash from a guy named Najeh Muhana. Muhana sought to get that cash back, but after a series of ridiculous communications, his lawyer was told that Customs and Border Patrol in Ohio was keeping the money, and that Muhana had "waived his rights to the currency." This was not true, and certainly appeared to be pretty sketchy. Because of all of this, Muhana filed a lawsuit against US Customs & Border Patrol asking for his money back.
Not surprisingly, this story of what many would argue is just blatant theft by law enforcement (the people who are supposed to be protecting us from theft) upset a number of folks who expressed their frustrations in the comments -- some using colorful language. That kind of language might not necessarily be considered appropriate in polite company, but isn't entirely out of place in internet forums and discussions where rhetorical hyperbole is not uncommon.
So I have to admit that I was rather surprised yesterday afternoon when we received a phone call from an agent with Homeland Security Investigations (the organization formerly known as ICE for Immigration and Customs Enforcement), asking where they could send a subpoena to identify a commenter on our site. Our lawyer, Paul Levy of Public Citizen Litigation Group, requested more information and we were told that DHS is interested in obtaining user information on the following comment by "Digger."
The only "bonus" these criminals are likely to see could be a bullet to their apparently empty skulls.
The person wronged probably knows people who know people in low places who'd take on the challenge pro-bono, after a proper "cooling-off" period.
Now, that's pretty crude and a bit ridiculous. But it's also pretty obviously not even anything remotely like an actual threat. First off, he's not suggesting that he's looking to do this at all. He's suggesting that "the person wronged" -- by which he likely means Mr. Muhana -- would somehow get some friends to do this. This is pretty ridiculous and almost certainly wrong. Second, he's actually responding to another comment, that reasonably bemoans the likelihood that those involved in all of this will receive no punishment at all.
Now, it's entirely possible that there are more details here involving a legitimate investigation, but it's difficult to believe that's the case given the information we have to date. Also, we have not yet received the subpoena, just the phone calls and emails suggesting that it's on its way. Normally, we'd wait for the details before publishing, but given a very similar situation involving commenters on the site Reason last year, which included a highly questionable and almost certainly unconstitutional gag order preventing Reason from speaking about it, we figured it would be worth posting about it before we've received any such thing.
We have told Homeland Security that we're willing to receive the subpoena and review it, but that based on what we know, we have serious First Amendment concerns about the request itself. Multiple Supreme Court cases, including Rankin v. McPherson and Watts v. United States have made it clear that people have a First Amendment right to say that they hope the President gets shot, let alone a law enforcement agent. It may be rude and uncomfortable, but if it is not an indication of a "true threat," then it is protected. And, as such, the idea of disclosing any information about someone who was clearly engaged in rhetorical hyperbole in an internet forum, likely leading to federal agents showing up at his or her door, is quite troubling to us.
Really, the most ridiculous part of this is why this is what's being investigated, rather than why the government was basically able to just walk away with $240,000 from this guy and ignore his attempts to get his money back.
We will keep you informed... as much as we are able to.
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."
Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant
None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
You are not protected by the Speech Act.
This firm has enforced numerous judgments against corporations in your jurisdiction.
Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.
Criticism is part of life, of course, and I tend to believe that people show their true selves most transparently when they show how they deal with criticism. Unfortunately, we've covered entirely too many stories involving people and companies responding to online criticism poorly here at Techdirt. Typically, these unfortunate responses amount to trying to censor the criticism, but it can more dangerously involve the attempted silencing of journalism as well as threats of legal action against those making the critical comments.
Too many times, websites and web services cave to this sort of censorship. But not everyone. Gawker Media, about whom I could fill these pages with criticism, appears to be pushing back on once such attempt levied against its site Jalopnik. Apparently, car-maker Honda took a negative view of some comments made at the site, purportedly by a Honda employee. For some reason, Honda decided that this distinction meant that it could not only silence the comments, but that it should receive help from the site in outing the commenter. The whole thing starts off, as seems so often the case, with some rather mild criticism in the form of a comment.
In December, a commenter calling him or herself HondAnonymous, posted a string of comments on these posts claiming to be a technician at Honda’s research and development facility. People on the Internet make claims like that all the time, but HondAnonymous seemed able to back them up with actual information about the development of the NSX and other cars. The most interesting bits were complaints about the NSX’s Continental tires (“they are garbage”) and how newer Honda engines have an issue “with the studs on the cat either backing out of the head or snapping altogether.”
Interesting, if not earth-shattering. A lot of it sounds like normal car development. The first one is a complaint we’ve seen in various early NSX tests, and the last is probably a recall waiting to happen. But earlier this month, Honda’s lawyers contacted us to say that information posted by HondAnonymous “is confidential information owned by Honda R&D Americas, Inc., and posts by that user of such confidential information breaches a contractual obligation of confidentiality owed to Honda R&D Americas, Inc.”
As Jalopnik notes, it wasn't them that posted the information. Instead, it was a commenter within the open commenting system Gawker Media uses. Regardless, apparently Honda's attorneys requested not only that all comments by the user be taken down immediately, but they also requested that the site turn over all identifying information about the user to them so that they could hunt down the leak. Think about this for just a moment and you'll see the problem: Honda wants Jalopnik's help in figuring out who this commenter is, while also demanding that the content be taken down because it violates a contractual confidentiality agreement. However, Jalopnik isn't obligated in any way to help Honda, regardless of what private contracts may or may not have been violated.
In typical Gawker fashion, Jalopnik gleefully is posting about all this, Streisanding the issue back into the news when it might otherwise have died off quickly.
It’s pretty egregious for a corporation to try to bully a news organization into deep-sixing comments from its own readers. It’s far more egregious to threaten to subpoena us if we don’t dox one of those readers. The good news is we couldn't dox HondAnonymous even if we somehow wanted to. He or she used an anonymous burner account, and we don’t track passwords, logins, or IP addresses for any of our users. HondAnonymous’ posts will stay up.
To Honda, or any other automaker: If you would like us to delete the comments of our readers or expose their identities (which, again, we can’t do anyway) again, please let me know! I am more than happy to drag your intimidation tactics into the public eye for all your customers and prospective buyers to see. Govern yourselves accordingly.
So, in trying to silence and out a critic, Honda instead finds themselves the subject of reports about the attempted silencing of the critic, whose criticism is once more in the public light. Bang up job, lawyers!