Wednesday, January 09, 2013

Twitter Trolls: Permanence, Insanity, Defamation and Forgetting

Daniel Sickles, the first man acquitted by
reason of temporary insanity in the US
Daniel Edgar Sickles died in 1914 at the age of 95.  He had had a successful and long life, as a military leader at Gettysburg, US Ambassador to Spain, and Congressman.  He also had a colourful life, plagued by scandals, the highlight of which - if it can be called such - was his acquittal for the murder of his wife's lover, for the first defence in the US courts of temporary insanity.  While there was some unease with the verdict, the public outcry was most pronounced when it became known that he had returned to his wife, who he had publicly branded a harlot.  The people of 1859 were fickle, it appears, and not all that well grounded in legal philosophy and considered righteousness; plus ca change, then.

While the trial of Sickles seems to have been deeply flawed in retrospect, the principle of temporary insanity stuck.  In essence, there are circumstances that can cause deep psychological distress and trauma, leading to our mental functions being compromised, resulting in acts that would not otherwise have been committed.  The effect is transitory, and mitigates against the intent (what our legal friends would refer to as the mens rea, or 'guilty mind') and the likelihood to re-offend.  In turn, this minimises the necessity both for punishment and deterrent.  And so, as a standard in law, this can be considered a defence, particularly in the event of violent crime.

Meanwhile, back in 2013 in Ireland, we find ourselves in the middle of a debate on the probity of social media comment, and in particular the nasty trolling that causes such grief to the people who are targeted.  It's certainly not a very nice practice, though much of the commentary to date has focused on two points: first, that the politicians complaining about the problem don't understand social media, and are completely disconnected from it; and second, that existing laws are adequate to deal with the issue.

Social Media, and the Internet more generally, has a problem with forgetting.  It is first and foremost a communications mechanism, and we must be aware that there is a difference between communication and publication.  Let us presume for the moment that social media is by its very nature opinion, rather than fact (and gossip, or the repeat of a scurrilous rumour, cannot for any practical purposes be construed as defamatory, even if such repetition is within a non-private forum) and we can more or less infer from that that defamation should not be at issue - I know this is a contestable position, but I'll let real lawyers debate it.  There is a problem however in that the communications are persisted - they are not fleeting, or temporary.  In addition, they are - in a sense - written down, etched into the electrons of the Internet, and able to be recalled in a click or two.  The impact of this technology is to make everyone a publisher, to make every communication an effective publication.

When defamation laws - and specifically libel laws - were first introduced, publishing was the preserve of an exclusive few.  Those publishers - newspapers, in effect - held great sway in creating and destroying reputations, just as they had built up the reputation of Daniel Sickles, and aggressively perpetuated that reputation throughout his murder trial.  The capacity for publication that now extends to us all dilutes the impact of publication, and broadens the range of channels through which a reputational defence can be mounted.

Because common communication is now an effective publication if it is effected through social media, the effect of communication is changed.  Two things flow from this.  First, we need to understand as people that the amplification of our communications is not insignificant, and our behaviour should be modified as a result. We're not naturally trained or socialised to understand that.  Our parents, and our leaders, didn't understand that.  Second, the temporal extension of context is huge.  For example, a communication in one context - the publication of a picture of a person at a party in college with a bottle of whiskey at their lips and the caption "Drunken Pirate" - may not be appropriate five years later when applying for a job as a middle school teacher, and the interviewer does an Internet search.  This is essentially what happened to one person whose story was retold in Viktor Mayer-Schonberger's excellent book 'Delete: The Virtue of Forgetting in the Digital Age'.

Social Media and the Internet are changing the way in which we communicate, the way in which we relate to one another, and concepts of reputation and identity.  It is a very dramatic and substantial shift that we have only just begun to explore.  We can do things at a point in time that are crazy, stupid, that - set in their appropriate context - can possibly be explained, but persisted beyond that context become less understandable.  A bit like Dan Sickles, then, we can all be temporarily insane.  But our ability as human beings to traverse this new territory is extremely poor.  We should tread carefully as we try and understand our new tools, but let us not presume that this is the same as it was, and that therefore our existing law is sufficient to cater for this new dispensation.  It's not going to be easy to rediscover how to forget, that genie is out of the bottle.  We just have to learn how to live with our past a little more comfortably, and maybe communicate more wisely.

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