Clarifying my comments to the BBC

I was quoted by a BBC reporter in a piece about the legal and ethical ramifications of the Kathy Sierra incident. Though the piece used many of my comments verbatim, it did not include them in full and suggested I disagreed with Tim O'Reilly about the advisability of a blogging code of conduct. In fact, I'm all for such a code. I do not think such a code addresses all the problems raised by this situation, particularly the indirect responsibility problem.

Jane Wakefield's follow-up piece for the BBC about Kathy Sierra is now available:  Call for blogging code of conduct.  I'm quoted in the piece and would like to clarify a couple of points and provide you with all the comments I provided her.

I'm presented in the article as a counterpoint to Tim O'Reilly's suggestion that a blogging code of conduct is a good idea:  "Denise Howell, a US lawyer and blogger, believes that the blogosphere is no place for legal requirements."  I did not say that to Ms. Wakefield, and I don't believe such a characterization is warranted from the comments I gave her.  Our Q&A on the subject was as follows:

> 2)Would you advocate a bloggers code of conduct? How do you see this
> working?

I think various such codes already exist (Google it and see, you
should find something I think).  They allow bloggers interested in
doing so to assure readers and inform commenters that they adhere to
various principles.  As a practical matter I don't see such a code
having much impact in a situation like this.
 
What I'd hoped to get across, but expressed too clumsily and obliquely, was there have been movements in favor of blogging codes of conduct for quite some time.  However, there has been fragmentation and no widespread resolution on the issue to date.  For the record, I agree with Tim O'Reilly that accepted conduct standards are a good idea, and completely in keeping with the message of the talk I just gave at VON.  The reason I don't think a code of conduct would suffice to put to bed all the issues raised by this sort of situation is that psycho- and/or sociopaths don't follow codes.  They could care less about codes.  So we're back to the question of whether and when indirect legal responsibility is appropriate.  A subset of that question is whether group blog administrators and loosely joined co-bloggers are expected to promulgate proactive rules and policies concerning potential bad acts, and then enforce them, in order to protect themselves legally.  As I posted earlier, while such proactive measures are good for potential victims, they may well be beyond the resources and foresight of real people, and the burden of requiring them thus will chill beneficial speech by discouraging and overwhelming the would-be speakers.
 
The balance of my responses to Ms. Wakefield follow: 

Q:  ...[I]t would be great to get a few of your thoughts in email. ...

A:  [I premised by explaining I know several of the people discussed in Kathy's post.  Then said:] 

The tools of the Live Web have made it easier than ever for ordinary
people to communicate and express views in their individual
capacities, and to provide platforms, e.g. on their blogs, for others
to do so.  I think anyone who enjoys any aspect of the Live Web would
celebrate this fact, and agree its vitality would be impaired if the
law expected or required these ordinary people to envelop themselves
and their sites in elaborate legal provisos and conditions if they
hope to be shielded from potential responsibility for the bad acts of
others.

The Kathy Sierra situation is forcing bloggers to examine their moral
compasses on a number of fronts.  While most of the attention I've
seen is around what sort of discourse should be tolerated and the
deplorable nature of hate speech, the extent to which others should or
must police deplorable or unlawful speech should also be front and
center.  Most people would agree that provocative and controversial
discourse is the heart and soul of the Live Web, but that sort of
speech also can attract those who seek to do deeper harm (whether
psychological or otherwise) than merely engaging in such discourse.
Awareness of that fact may warrant and prompt the blogosphere to
emulate more traditional online discussion forums by promulgating
explicit ground rules and terms of service.  In the U.S., group blogs
might also test of the scope of Section 230 of the Communications
Decency Act, which limits the liability of those who merely provide a
platform for the online activities of others.

To clarify that last point, Section 230 offers only limited liability protection even in those situations where it has been determined to be squarely applicable.  It explicitly exempts safe harbor protection concerning another "information content provider's" federally criminal conduct or intellectual property infringements.  As discussed here periodically though, it has been broadly interpreted by courts to bar claims concerning wrongs as diverse as defamation and physical injury.  Continuing:

> 1)Have you personally been aware of sexism in the world of blogging? Is
> it harder for a woman to blog? Do the criticisms tend to make reference
> to gender differences?

I've personally experienced only welcome and from time to time
challenging discourse, but always on a respectful level.  Blogging
offers a largely meritocratic, globally reaching platform that is
accessible to anyone, and can be a vast improvement over other
environments where women do not have such a degree of access and
opportunity.  Despite my fortunately good experiences, I do think it's
harder in some ways for women to blog.  For women with families, it's
constantly in the back of your mind that you're putting not just
yourself but to some extent your family in the public eye.  (Of course
the same is true of male bloggers, but I think women are more acutely
aware of and concerned by this fact.)

Blogging is a mirror of society, subject to all of its shortcomings.
I women bloggers can face the same sort of unique hurdles and
challenges as women journalists:  i.e., on a substantive level, it can
be harder for them to achieve the same sort of influence and reach as
their male counterparts, and on a personal level their gender itself
can trigger undesirable attention and response.

My thanks to Ms. Wakefield for including my verbatim quotes in context.  However, it's wrong to say I believe that the blogosphere, and the Live Web in general, is no place for legal requirements, and, through that statement and its placement in juxtaposition to Tim O'Reilly's comments, to suggest I do not endorse the adoption of blogging codes of conduct.  I did not intend to send that message and regret if my brief response left some question in that regard.  To the contrary, I believe such codes can play an important role in the process of building law that works.

Meanwhile, Doc has related news.

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