Pianist wants bad review taking down under EU "right to be forgotten" rules

boing
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Why would we want to make it easy for people to speak without consequence, regardless of how responsible their speech is, and why do we want to guarantee that they are able to use the resources of others to broadcast that speech? When has human society ever provided people with a completely anonymous, consequence-free, and permanent forum for broadcasting whatever message they want to the entire world? I mean, the closest historical precedent might be graffiti, but even that could be cleaned up, covered up, and wasn’t so widely disseminated.

Sure. On the one hand, we have exhibit A, which is a single individual who has claimed the right to be forgotten (but has not claimed libel, making him not a very good exhibit at all). On the other hand, I could point to multiple colorable cases of libel in almost every BB comment thread relating to politicians and their shenanigans.

I don’t believe I’ve suggested that. I’ve simply suggested that there is a constitutional way to implement libel take-down notices.

And yes, I can see benefits to a take-down system. Calling someone a slut is, legally, defamation per se (inasmuch as it imputes a woman is unchaste). Could this be a tool to combat online bullying? Absolutely. Could it also be used for pernicious purposes? Sure. Could those pernicious uses be combated through the legal system (which is the system you are currently suggesting we use to deal with libel), such as with robust penalty-of-perjury provisions, SLAPP laws, and requiring that libel claims be made in good faith (something that will be harder for corporations to argue, given their legal departments’ more sophisticated understanding of libel law)? I think so.

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And whether you could get a judge to actually buy that argument would vary greatly depending on the locale, the actual words around that word, and the overall situation. You’re proposing to short-circuit all of that, and give a provider an incentive to just trust the accuser.

So, it’s not possible for everyone to launch an action for libel, but everyone who’s falsely accused of libel must now launch their own action if they want to prove their innocence?

51

It’s defamation per se. Suggest someone is unchaste, and it’s defamation. There’s not a whole lot of analysis to be had.

The current system gives providers incentive to not police the content they host, to give voice to those posting false and injurious information, and to essentially trust that everyone is telling the truth.

Hey, you’re the one who argued that using lawsuits for libel is a good approach, even though the practical effect seems to be that it is only the powerful who are able to launch libel suits.

I think it’s a stretch to say that a takedown notice is an accusation, or that fighting a takedown is an attempt to prove innocence. But let’s take things on your terms: you are saying that everyone who is falsely accused of being disreputable (i.e., who is defamed) must launch their own action to prove their innocence (i.e., bring a defamation suit), and that this is good and proper.

52

Not in every locale, and even in jurisdictions where that’s true there are defenses.

I’m saying that in order to silence someone’s speech, there ought to be an objective opinion on whether that speech is actually harmful enough to support it.

Pray tell, what are the exact steps a provider can use to determine whether any specific statement made on their website is actually libel or not? Make sure to take into account every jurisdiction in the world… and keep it short, there’s a LOT of content to police.

Riiiight.

53

There may be defences and things may be different in some jurisdictions, but the judge isn’t doing a lot of balancing when something is a per se offence—that’s why it’s a per se offence.

Pray tell, how did pre-internet media companies determine whether any specific statements they published was libel or not? And how do traditional media companies (many of whom publish in multiple jurisdictions) manage to do so today?

Why should society lower its standards now? Why should internet corporations get exceptions that traditional media entitites do not?

So, in your mind Google has been accused of piracy and copyright infringement millions and millions of times?

54

So, there may be balancing to do, and it may not even actually apply… but there isn’t any balancing to do, and it’s a per se offence because you say so?

Look, I realize you’d really prefer to discuss this only in terms of the specific kind of case and specific jurisdictions where you believe it would be cut-and-dry, but you’re not talking about something that would only apply to those cases or those locations. Either narrow your proposal, or broaden your defenses of it.

And now you’re conflating traditional media publishers with service providers in general.

I’m just not sure if you’re being willfully obtuse here or if you’re really not following who the accusation in a takedown notice is directed at. Hint: it would be the party who would actually have to defend themselves against the accusation in order to prevent the takedown from having an effect.

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There is a difference between a defence—especially an affirmative defence—and meeting the elements of a crime or offence. Homicide is killing someone. Self-defence is a defence to homicide. In order to establish homicide, you have to establish that you killed someone. If self-defence is raised as a defence, it can excuse that crime. Defences are not always raised, and they are generally invoked only when the underlying offence is conceded. Because the saying someone is unchaste is a per se offence, there is no balancing that goes towards determining if there is an offence, and the burden largely shifts towards the speaker to show a defence (such as truth) should apply.

It’s a per se offence not because I say so, but because statutes and the common law have defined it as such. Wikipedia lists it as such. I am telling you what the law in the US—where most social media sites are based—generally is.

Yeah. How dare anyone pretend that the DMCA or copyright takedown notices serve as a framework for the global internet, and how dare they talk about them when there are more jurisdictions in the world than the US?

No, I’m asking why internet service providers should be treated differently, and why false and defamatory speech should be more highly protected on the internet than in traditional media.

I’m not sure if you’re being willfully obtuse, but Google itself is subject to millions of takedown notices, and search results frequently tell searchers that. Google could chose to defend themselves against the accusation that their search results pages contain the infringing content, but they instead chose not to defend themselves against these accusations.

A Google-created page that has been subject to multiple takedown notices:
https://www.google.com/search?q=expendables+3+torrent

An example of the takedown notice:
https://www.chillingeffects.org/notices/1177047#

Note that the takedown notice is about the content of the Google search results pages, and has not resulted in takedowns of the content at the actual websites linked to (something Google would be powerless to do, since it does not host or control these websites). As an example, the very first URL listed in the complaint can still be accessed:
http://angrytorrents.com/hash/The+Expendables+3+2014+DVDScr+LEAKED+CLEAN+XviD+AC3+TBI/1708F5D35152359728669F834E0EFCFCB70066D4

Yet this URL has been excised, by Google, from their results pages, as a result of a DMCA complaint to Google about content hosted and created by Google on Google’s own website. This is an accusation that Google has chosen not to fight, and the takedown has had effect against them.

56

I don’t have to know why your head hurts before I can point out that beating it against a wall isn’t making it any better.

If you do it hard enough it does stop hurting.

57

You keep repeating “defamation per se” as though it’s a magical “if it’s one of these things, there’s no argument about whether it’s an offense”. It’s not. Even if we’re only discussing jurisdictions in the US. Wikipedia’s description is not very nuanced about it, and the rules about what you need to argue even in per se cases varies greatly across jurisdictions and depending on the situation.

Even if it were that cut-and-dry, you’re not talking about something that would only apply to just those kinds of cases. Again, I know you’d like to only talk about those kinds of cases or jurisdictions, but that’s not going to work unless you’d like to narrow your proposal to only impact well-defined examples of those specific kinds of cases.

So now you evidently agree it’s an accusation. You could have just said that, rather than type an awful lot of words about something that no one disputed.

I guess I don’t even need to point out that the recipient of a DMCA notification is typically not the person accused of committing the offense, but rather the provider who is displaying content they did not create or have control over. That doesn’t make it any less an accusation against the offender, who would ultimately be required to defend themselves to prevent the notice from having an effect.

Why must a houseplant be treated differently from a dog?

58

Do you understand what “per se” means, or what an offence per se is? And why don’t you tell us about some of these different rules that apply to different types of defamation per se in different jurisdictions, “depending on the situation”?

I didn’t suggest it would work only against these kinds of defamation per se statements; I gave other examples of why a libel-takedown system wouldn’t be bad, and they did not rely on defamation per se. You are the one who chose to focus on this specific example, not me. And it would be easy to write a federal defamation law for internet communications, which would largely remove your state-specific jurisdictional concerns and apply as widely as the DMCA does.

No, I’m simply using your words. I don’t consider it an accusation of infringement, and I certainly don’t think Google has to take legal action in order to prove itself innocent of this accusation. You do. Which is why you must think that Google really is accused of millions of instances of copyright infringement each year (which you disputed), and that it has failed to prove that it is innocent of these accusations.

You’re saying ISPs don’t have control over their networks, or over the content they host? Or that they’re being forced to display content created by others?

If a dog turned into a houseplant when you put it in the car, or on a plane, or in a different country, then you might have a point.

In contrast, publish a story on the internet, and you’re subject to one set of rules. Publish it in a magazine—or any other form of traditional media—and you’re subject to another set of rules. For the exact same content.

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I’ve already pointed out twice why I don’t think that, and who’s actually being accused. That you’re trying yet again to shove those words into my mouth tells me that we’ve gone as far as we can in this discussion.

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I said that a takedown notice is not an accusation of infringing. You disagreed, telling me that the accused is “the party who would actually have to defend themselves against the accusation in order to prevent the takedown from having an effect.” And you said this even though Google would have to defend themselves against the “accusation” that their own search results are infringing in order to fight their search-related DMCA takedown notices.

You haven’t actually backed away from this, and have suggested i agree with you that Google is accused of infringement (“So now you evidently agree it’s an accusation”). What you have said is that you don’t think this a the typical sort of DMCA takedown notice. Neither of these things is the same as saying you don’t think Google is accused of infringement.

At any rate, both the DMCA and a libel takedown notice regime would do the same thing: notify networks that they are hosting material that may be violate the law. The network would then have the option of removing the content or facing legal consequences as the publisher (i.e., be treated the same way as traditional publishers, who do not have any safe harbour protections). The network then has the option of independently looking at the content and deciding if they are legally comfortable hosting the content (and/or allowing the content creator to appeal or counter-claim).

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For this particular story the joke is this: the review isn’t half bad, and I would go to see a performance based on it.

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And yet, I made it pretty clear that I disagreed with what you were saying I thought, to the point of saying it might be “willfully obtuse”. Take the hint. I really don’t feel I need to spell it out to you further than I already have. Just because you can’t seem to comprehend who the accusation is targeted at doesn’t mean you’re correct about the words you stuck in my mouth.

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Maybe the performer has higher expectations of himself and thought he really sucked far more than the review suggests?

2 Likes
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I’m pretty disappointed to find that my posts from yesterday which suggested people to look at their own posting history and ask if they’ve never been embarrassed by things they’ve said in the past to the extent that they’d consider their removal.

My posts were on topic and relevant.

Their removal makes them even more relevant now.

Did someone not like them? Did they ask to have them removed? Doesn’t that represent a massive hypocrisy on BoingBoing’s part?

65

Or the words I directly quote you as saying, apparently, such as that I supposedly “agree” with you that Google is being accused of copyright infringement, even if “typically” DMCA claims happen in a different context.

Oh. So if I suggested you were being willfully obtuse about defamation per se, that would have ended the conversation and you would have taken the hint?

I guess you don’t have the right to be forgotten, but they have the right to get you forgotten. As a publisher (and corporation), their corporate rights trump your individual rights, obviously.

I think there is a certain amount of hypocrisy in how BB operates: they seem to feel that places like YouTube should be operated as public forums without any real censorship, curating, standards-setting, or subjective judgment calls about what content they keep or do not. But on the other hand they also believe that other internet companies have the right to moderate comments, ensure community guidelines are adhered to, etc… even if those companies set up forums for public participation.

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If you actually quoted me as saying that, then I don’t see it anywhere. All I said is that you appeared to agree that it was an accusation. You seem to have tacked on Google being accused all on your own, I in no way assented to the idea, and you’re still trying to act as though it’s MY idea.

In any case, this is getting WAY off topic, and I don’t have any responsibility for things that your imaginary version of me thinks. If you’d like to actually have a grounded discussion rather than repeatedly insisting (despite evidence to the contrary) that you know better than I what I’m thinking, then by all means please do. I don’t think I’ll be discussing any further with you, though.

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I must have been agreeing with someone, I had already suggested that you must logically believe that Google has been accused of copyright infringement, and there hasn’t been any suggestion that anyone else shared this view. So when you said I agreed that it was an accusation, who exactly did you mean to suggest I was agreeing with?

But since you don’t think Google is being accused of anything, and since Google just removes the links and doesn’t actually remove the offending content at the links, then presumably it would be OK to have a libel-takedown scheme that only applies to search engines: nobody (other than Google) is being accused of anything, nobody has to do anything in order to clear their names of these accusations, the allegedly libelous content is not actually removed from the internet, yet it is more difficult for people to find because it wont appear in search engines.

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I disagree. I believe the curtors of BB have a rational opinion that when a service becomes as large and ubiquitous as a utility they are held to a higher standard, such as the largest search engine. I am only commenting on what the I think the curators may believe.