Australian Court Says Zipper Mouth Emoji Might Be Defamatory

from the my-mouth-is-zipped dept

🤐. Hopefully that won't get me sued in Australia. Because a court there has determined that the zipper mouth emoji is capable of defamatory meaning. I should note, as we have many times in the past, that Australian defamation law is totally fucked up. They are among the worst of any industrialized nation, and we've been on end of absolutely ridiculous threats and harassment for years because of our coverage of totally wacky censorial Australian court decisions regarding defamation. To which I say: 😛

Thankfully, however, it appears that some changes may be afoot in Australia over this. New South Wales has recently passed some minor reforms that at least require there to be "serious harms" for defamation to be in play. And that's a huge step forward.

Anyway, this case -- which does take place in NSW -- is about whether or not that single emoji might possibly be considered defamatory. And, since I know that Santa Clara University law professor Eric Goldman is the go to expert on emoji and the law, I fully expected an analysis of this case from him and I was not disappointed.

The case involved a discussion about a lawyer who had been criticized by a judge. Someone on Twitter had asked what happened to the lawyer, leading to this reply:

Then there was a second reply (actually a quote tweet) from someone else with more emoji:

The question before the judge is whether or not the zipper faced emoji by itself might be considered defamatory. To be clear, under American law, I don't see how it possibly could be, because it's not stating anything that can be proven false. However, Australian law has the concept of "imputation," in which if there is "insult or innuendo" implied by a message, that perceived interpretation can be defamatory. Here the court said there's a possible (not definite) defamatory meaning, though takes a convoluted path to get there:

Mr Rasmussen first points out that the result of the disciplinary referral is asked about at [6], to which the zipper-mouth face (at [7]) is the reply. As to the inquiry about why this stub is being posted a year later, the ordinary reasonable social media reader would be well aware that Twitter posts are geared to “trending” news; this could be why the inquiry about posting an article that is nearly a year old is made. The inquiry seeks to know what the result was. The defendant’s answer is the “zipper-mouth face”.

Mr Rasmussen submits that this “zipper-mouth face” is worth a thousand words – the emoji implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result, and instead must hint at it by posting the newspaper story from the previous year and using the “zipper-mouth face”, so the reader can guess the rest.

Using the more traditional metaphor (coined by Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47 and often referred to in arguments on meaning; see Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 (QB) at [22]), Mr Rasmussen submits that this Delphic response is the equivalent of shouting “fire” in a crowded theatre, giving rise to a defamatory meaning which is further inflamed by the three following comments.

Viewed in the context of the reply sent by the defendant, the “zipper-mouth face” picks up on both aspects of the inquiry – the fact that the defendant is posting an article almost a year old and the result of the events the subject of the stub. This is a case where “joining the dots” (Joukhador v Network Ten Pty Limited [2020] FCA 746 at [43]) to achieve the meaning is a particularly likely exercise when carried out on a social media site, where the exchange of such information is more likely than a serious publication to contain hints of a sensational nature.

In all those circumstances, the imputation pleaded, namely that the plaintiff has not merely been the subject of a referral, but also a result adverse to her, is reasonably capable of being conveyed.

And, yes, I cringed at a court -- even an Australian one -- resorting to the misleading trope of "fire in a crowded theater". Even so, it still seems like a huge stretch to go from posting a zipper faced emoji along with a year old article "implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result."

Still, as Goldman summarizes:

The ruling thus concludes hat the zipper-mouth emoji has the capacity to be defamatory; the plaintiff gets a chance to keep making that argument. It doesn’t mean that the zipper-mouth emoji response was, in fact, defamatory. Indeed, I can imagine many ways the zipper-mouth emoji had non-defamatory meanings. For example, if the defendant didn’t have any inside information about the status of the disciplinary proceeding and his readers knew it, then the zipper-mouth would be an ironic usage to project onto the people on the inside who know something but aren’t talking about it. It could also mean that the defendant literally does have inside knowledge but is legally prevented from taking about it, whether the developments are good or bad. In subsequent proceedings in this case, the defendant will get a chance to show that the usage could be one of the other non-defamatory meanings.

A free speech protecting law would have had this kind of case tossed much more quickly, but that's not in existence in Australia, and thus this case continues. One might be tempted to say that this is a 🦘👩‍⚖️ but now I fear that might be defamatory in multiple ways.

Filed Under: australia, defamation, emoji, imputations, social media, zipper mouth
Companies: twitter

Surprise: Report Claims Facebook Has Been Driving White House TikTok Animosity

from the manufactured-outrage dept

As we've been noting, Trump's executive order attempting to ban TikTok is not only legally unsound, it's not coherent policy. Chinese state hackers, with their unlimited budgets, can simply obtain this (and far greater) data from any of the thousands of companies in the existing, unaccountable international adtech sector, our poorly secured communications networks, or the millions of Chinese-made IOT devices or "smart" products Americans attach to home and business networks with reckless abandon. The U.S. has no privacy law and is a mess on the privacy and security fronts. We're an easy mark and TikTok is the very least of our problems.

With that as backdrop, it's clear that most of the biggest TikTok pearl clutchers in the Trump administration couldn't care less about actual U.S. consumer security and privacy. After all, this is the same administration that refuses to shore up election security, strictly opposes even the most basic of privacy laws for the internet era, and has been working tirelessly to erode essential security protections like encryption. If the U.S. was actually interested in shoring up U.S. security and privacy, we'd craft coherent, over-arching policies to address all of our security and privacy problems, not just those that originate in China.

Trump's real motivations for the ban lie elsewhere. As a delusional narcissist, some of his motivation is the attempt to portray himself as a savvy businessman, extracting leverage for a trade war with China he clearly doesn't understand isn't working, and is actually harming Americans. Spreading additional xenophobia as a party platform is also an obvious goal. But it's also becoming increasingly clear that at least some of the recent TikTok animosity is originating with Trump's newfound BFFs over at Facebook, who've been hammering Trump with claims that Chinese platforms "don’t share Facebook’s commitment to freedom of expression," and "represent a risk to American values and technological supremacy.":

"That was a message Zuckerberg hammered behind the scenes in meetings with officials and lawmakers during the October trip and a separate visit to Washington weeks earlier, according to people familiar with the matter. In a private dinner at the White House in late October, Zuckerberg made the case to President Donald Trump that the rise of Chinese internet companies threatens American business, and should be a bigger concern than reining in Facebook, some of the people said."

Nobody's getting specific on the details, but those Peter Thiel, Mark Zuckerberg, and Trump administration dinners last fall, not too surprisingly, focused a lot on the threat China poses to American industry:

"In a private dinner at the White House in late October, Mr. Zuckerberg made the case to President Trump that the rise of Chinese internet companies threatens American business, and should be a bigger concern than reining in Facebook, some of the people said."

On one hand, Facebook certainly has a case to make that if AG Bill Barr and state AGs impose poorly-constructed remedies that harm and/or hamstring Facebook, worse, less ethical foreign alternatives could come to dominate the vacuum that's created. On the other hand, this is Facebook and the Trump administration, and neither have been stellar examples of the "American values" the meetings sought to defend, so it requires some heavy logical lifting to presume Facebook's motivations here are predominately patriotic and altruistic.

Of course Facebook wants to build a narrative where U.S. companies are somehow exceptions to the privacy-violating unethical hubris that is the global norm. Of course Facebook wants to derail antitrust scrutiny of its own myriad failures and misdirect that scrutiny toward foreign competitors whose teen video data it covets. And of course Facebook wants you to believe it neither works closely with China nor exhibits many of the same bad privacy habits China routinely engages in. Aka an "opportunistic weasel," as Gizmodo puts it:

"...if these meetings happened the way the Journal is laying them out, then even if Zuckerberg isn’t guilty of calling TikTok a threat to our security, he’s very guilty of being a weasel. A weasel who isn’t afraid to cuddle up to an administration he’s ostensibly critical of, and offer up any other company, foreign or domestic, as a distraction to take the heat off antitrust scrutiny."

Facebook's self-serving posturing here may be accompanied by some legitimate concerns that hamstringing domestic social media giants in idiotic ways could only make things worse for U.S. tech in general, but it's also pretty hard to believe TikTok hysteria coincidentally reached a fevered pitch just as Facebook was unveiling its TikTok clone, Reels.

There are certainly whiffs of coordination here that go well beyond genuine concerns about the perils of regulatory over-reach. This being Facebook, how much coordination will likely emerge three months down the road, but Facebook, for its part, is claiming TikTok was never even mentioned at October meetings:

"Facebook spokesperson Andy Stone said in statement Sunday that "Mark has never advocated for a ban on TikTok." He also said it was wrong to conclude that policy decisions were driven by Zuckerberg.

"He has repeatedly said publicly that the biggest competitors to US tech companies are Chinese companies, with values that don't align with democratic ideals like free speech," he said. "It's ludicrous to suggest that long-standing national security concerns — raised by policymakers on both sides of the aisle — have been shaped by Mark's statements alone."

Zuckerberg could have easily avoided mentioning TikTok specifically at dinner, while having his policy folks and lobbyists repeatedly wind up Trump and Senate leaders on a TikTok ban. The problem with believing there's no unsavory coordination here requires leaning on reputations the Trump administration and Facebook simply don't have. Namely that either operates out of anything more than self-interest, or genuinely cares about the privacy and market ramifications of a teen dancing app. If either party is bothered by the insinuation they're not being truthful here, a good first step would be to perhaps stop lying constantly.

Whatever the motivation, it remains hard to view the TikTok ban as serious, adult policy given the track records of those involved with it, its legal shakiness, and the fact it won't actually accomplish any of its stated goals. It's a legally unworkable mountain of policy nonsense, and those who continue to pretend it's rooted in a genuine desire to protect Americans' data and security are giving the Trump administration -- and apparently Facebook -- credibility they've certainly never earned.

Filed Under: china, donald trump, mark zuckerberg, privacy, social media
Companies: facebook, tiktok

Trumpian Loudmouths Apparently Losing Interest In Parler With No One To Play Victim To

from the too-bad,-so-sad dept

What a shock. Parler, the site that falsely claimed that it would be the "free speech" alternative to Twitter, but who quickly realized that it was going to have to aggressively ban users as well, is apparently suffering from abandonment. As the Daily Beast reported, many of its most vocal supporters seem to have disappeared from the platform, preferring Twitter instead.

Trump superfan Bill Mitchell, who has amassed more than 580,000 Twitter followers on the strength of his outspoken devotion to the president, tweeted in late June that he was getting better engagement on Parler than he was on Twitter.

But, as of Friday, Mitchell hasn’t posted on Parler for nearly a week—while posting continuously on Twitter.

And others as well:

Other conservative personalities who were part of the June exodus to Parler haven’t stuck around. Allie Beth Stuckey, who has nearly 300,000 Twitter followers and styles herself as the “Conservative Millennial,” tweeted in June about her Parler account. But Stuckey hasn’t stuck around—she last posted on Parler on July 4, even as she has posted dozens of times on Twitter since then.

Stuckey isn’t alone. Trump campaign senior adviser Jason Miller, for example, urged his followers to make Parler accounts in the late-June rush to the site. But Miller hasn’t posted on the site since June 1, even as he prolifically tweets and retweets every day on Twitter.

Meanwhile, the article notes that (just as we said over here on Techdirt) that people -- including ideological supporters of Trump and his fans -- are realizing that Parler isn't any more supportive or against free speech than Twitter. The Washington Examiner had a piece saying (correctly) that Parler is not the free speech utopia Trump allies hoped for, and other Trump supporters are explaining how Parler is "anything but" free speech supportive.

Of course, this isn't a huge surprise. The glee over Parler was mainly over the fact that assholes seemed to want freedom to be assholes for the sake of "triggering" people. It's all performative. But if the people they're trying to annoy are elsewhere, they're just playing the clown for themselves, and what fun is that?

Still, it appears that with Twitter's recent (totally justified) decision to remove accounts spreading QAnon conspiracy fan fiction, it's likely that Parler will get a new burst of life as a place to spread nonsense conspiracy theories...

Filed Under: competition, social media
Companies: parler, twitter

Americans Disagree On What Content Should Be Moderated, But They All Agree Social Media Companies Suck At Moderation

from the truly-a-land-of-contrasts dept

No one agrees on how tech companies should perform the impossible job of moderating their platforms. But almost everyone agrees platforms are doing it wrong.

Conservatives complain too many of their fellow social media users are being silenced by left-leaning tech companies. Those on the left seem to feel not enough is being done to silence people engaged in hate speech or other abusive actions. Both sides agree there's too much misinformation being spread, although they disagree greatly about which news sources are the "fakest."

Since it's impossible to please everyone, almost everyone is going to have complaints about moderation efforts. That's the key finding of a recently-released poll [PDF] from Gallup and the Knight Foundation. When it comes to moderation, just about everyone agrees social media companies are handling it badly.

Americans do not trust social media companies much (44%) or at all (40%) to make the right decisions about what content should or should not be allowed on online platforms.

That's pretty much everybody. The perception that companies aren't making the right decisions flows directly from the disagreement between social media users on what content platforms should focus on moderating.

The level of concern about online foreign interference in U.S. elections varies sharply by political party. Whereas 80% of Democrats are very concerned about this issue, just 23% of Republicans are.

Similarly, when it comes to concerns about hate speech and other abusive online behaviors, Democrats are more likely to say they are very concerned about the issue (76%), compared to Republicans (38%) and independents (50%).

A smaller, although notable gap also can be seen in views on misinformation. Americans who identify as Democrats (84%) or independents (71%) are more likely than Republicans (65%) to say the spread of misinformation is very concerning.

Content moderation has become a partisan issue. The only bipartisan aspect of this is that both sides agree platforms are handling moderation poorly and that they wield too much power. But a majority of both parties agree allowing platforms to handle moderation without government interference is the least bad option.

Even though Americans distrust internet and technology companies to make the right decisions around what content appears on their sites, given a choice, they would still prefer the companies (55%) rather than the government (44%) make those decisions.

This is despite the fact that almost everyone agrees other users are getting away with stuff.

Most Americans do not think major internet companies apply the same standards in the same way to all people who use their apps and websites (78%). This includes 89% of Republicans, 73% of Democrats and 76% of independents.

So, what do we have? A fractured social media landscape mostly divided down party lines. Adding the government to this mix would only increase the perception of bias, if not actually insert bias where none may be currently present.

Social media companies are being asked to moderate millions of pieces of content every day. This would be nearly impossible if moderation only dealt with clearly illegal content (like child porn) and obvious violations of terms of service. But they're asked to determine what is hate speech, to target nebulous concepts like "terrorist content," to combat misinformation, and to deal with everything else users report as perceived violations.

This report shows a lot of perceived bias by tech companies is based on users' own political biases. Much of what users claim tech companies are doing wrong depends on their party alignment. Fortunately, both sides agree the government would probably handle this worse, but it's only a slim majority of those polled.

The biases seen in this poll carry over to moderators themselves, who will never be free of their own biases. This includes the algorithms used to handle most of the moderation load. But bias at the moderation level isn't enough to shift an entire platform towards one side or the other. There's simply too much content in play at any given time to allow moderators to create an echo chamber.

Moderation efforts will never please everyone. What's being done now pleases almost no one. And that's the way it's going to be in perpetuity. And the more the government leans on tech companies to do "more" in response to whatever is the latest hot button topic, the less effectively it will be done. Moderation resources are finite. User-generated content isn't.

Filed Under: bias, content moderation, content moderation at scale, social media

So Much For Going Dark: FBI Using Social Media, E-Commerce Sites To Track Down Suspects (Including Non-Lawbreakers)

from the where's-the-darkness dept

You know the drill, right? The FBI keeps insisting that it has a "going dark" problem due to encryption making it impossible to access key evidence of supposedly criminal behavior, in theory allowing crime to happen without recourse. The problem, though, is that nearly every single bit of this claim is false. It's kind of stunning.

• It appears that, in practice, the FBI almost never runs into encryption.
• In the rare cases where it has (and we don't know how many because since the FBI admitted it over exaggerated how many "locked" devices it had, and then has since refused to provide an updated count), there do appear to be ways to get into those devices anyway.
• But the key issue, by far, is that the opposite of going dark is happening. Thanks to our increasingly electronic lives, the government actually has way more access to information than ever before.

In amateur photos given to authorities, she is seen wearing a T-shirt that says, "Keep the immigrants, deport the racists."

They were able to trace the T-shirt back to an Etsy shop, where a review was left by a user that displayed a Philadelphia location.

Investigators say open searches for the username led them to a Poshmark user by the name of lore-elisabeth. Open searches for a Lore Elisabeth in Philadelphia led investigators to a LinkedIn profile for a woman who was employed as a massage therapist.

And, then they checked the website of her employer, which... included a few videos of a woman who matched the photographs of the woman lighting the cop car on fire.

None of that would have been possible in that way pre-internet. The FBI doesn't have a "going dark" problem at all. They have more light than ever before. Indeed, it seems a bit more darkness and privacy would be useful, because in some cases, the FBI seems to completely overreacting to otherwise fine (or, in some cases, joking) social media posts.

And that brings us to the second story, from NBC News, detailing the FBI trawling social media to arrest protesters they claim tried to incite riots at various (mostly peaceful) protests. Of course, the details suggest that the FBI may have an itchy trigger finger in freaking out about what people are posting, as the story details many of the charges are being dropped after the facts come in and the overzealous FBI appears to have overreacted. Indeed, it looks like they're arresting people entirely based on social media posts, which raises some pretty significant 1st Amendment questions. Or at least it would, if prosecutors didn't realize what a mess they'd caused and dropped the charges quickly.

Avery is one of four known people across the United States indicted on charges of incitement to riot solely on the basis of social media posts, according to federal court records. One man was charged for posting a crude napalm recipe that is widely available online. His charges were dropped several days later. Another man was questioned by the FBI for jokingly tweeting that he was the local head of antifa — a loose anti-fascist and left-leaning political movement with no clearly-defined organization, structure or leadership.

Taken together, the cases offer some insight into how federal law enforcement continues to monitor online speech related to social movements and pursue what legal experts say is a fairly aggressive approach to prosecution.

The charges against Avery were suddenly dropped without explanation Wednesday.

In other words, the problem does not appear to be "going dark." The problem appears to be so much sunlight that the FBI is finding "crimes" where none actually exist...

Filed Under: arrests, fbi, investigations, social media
Companies: etsy, facebook, linkedin

Nextdoor Is Courting Cops And Public Officials Using All-Expenses-Paid Trips To Its Headquarters

from the lobbying-for-a-worse-America dept

A COP IN EVERY HOUSE: that's the American dream. Maybe they can't enter the home, what with the Fourth Amendment and all, but they can be invited to every online get-together thrown by apps that promise neighborhood unity while asking law enforcement to get in on the action.

Ring, Amazon's doorbell/camera company, has made the relationship between neighborhood "sharing" and law enforcement explicit. It's right there in the term sheets. While Ring takes the PR reins to steer the official discourse, it's offering cops steeper discounts on Ring cameras they can hand out to citizens in exchange for pushing citizens to sign up for Neighbors, Ring's snitch app. Once attached to the app, Ring makes sharing of camera footage seamless and encourages homeowners to report suspicious people and activities. Unsurprisingly, many of the suspicious people reported are minorities.

It's not just Ring and Neighbors, as Citylab has discovered. Nextdoor -- a hyperlocal Facebook clone (and hotbed of bigotry) -- is courting cops as forcibly silenced partners in its plans to increase its user base.

Charles Husted, the chief of police in Sedona, Arizona, couldn’t contain his excitement. He had just been accepted into the Public Agencies Advisory Council for Nextdoor, the neighborhood social networking app.

“You’re the best!!! A great Christmas present,” he wrote in a December email to Parisa Safarzadeh, Government Relations Manager for Nextdoor.com Inc., obtained by CityLab through a public records request.

The invitation was too good to turn down: an all expenses paid trip to Nextdoor's headquarters in San Francisco. The company covered the costs for all invitees. In exchange for their participation, Nextdoor picked up the estimated $16,900 tab. And it swore participants to silence with a non-disclosure agreement.

Unfortunately for Nextdoor, this doesn't cover public records, which is what Citylab used to uncover this unseemly relationship between the social media company and US law enforcement. Chief Husted has no regrets -- or at least none he's willing to share publicly, possibly because of the NDA he signed. From what he can see, this isn't questionable. It's just a step in the right direction.

Husted says that leaning on social media — not just Nextdoor, but also Facebook or Twitter — in the line of duty is an inevitability of the current age. “It’s naive to think as public safety folks that we can keep doing our work the same as we have for years and years,” he said. “We have to evolve with the times, and the times have to do with social media: That’s where our communities are at. We have to find a way to be there too.”

He's right. Social media can't be ignored. But Nextdoor isn't inviting anyone from its largest group of stakeholders: members of the public. Instead, it's paying for government employees and officials to travel to San Francisco to hear its pitch for greater government involvement in a private company's communications platform. Nextdoor may claim to be connecting locals with each other, but its efforts are focused on roping in the people who are supposed to be serving its users: public servants.

Robbie Turner, a senior city strategist with Nextdoor, wrote to Husted that when expanding Nextdoor’s reach to Canada, the company was using “the same strategy we used when we first launched in the U.S. — recruit the major Police Departments and have them help us grow membership and engagement quickly.”

That's the bottom line: bumps in usage and users. Turning public entities into tools of corporations is seldom a good idea and it's certainly a bad idea when Nextdoor's user base appears to be willing to turn themselves into snitches at the drop of a hyperlink. If cops want to break bias patterns, they need to steer clear of unsubstantiated reports from biased Nextdoor users. Instead, Nextdoor is encouraging police to embrace the platform and all the problems inherent in its "see something, say something" nudges.

As for other public officials who took advantage of Nextdoor's all-expense-paid offer, they're having a problem seeing a problem with any of this. Never mind the optics. Officials want everyone to focus only on the letter of the law, which contains enough loopholes to drive an entire junket through.

Several public officials who were part of the Public Agencies Advisory Council say that the trip didn’t conflict with any city policies. Lara Foss, a corporate communications marketing consultant for the City of Austin, told CityLab that since the trip was work-related, it did not violate the city’s gift policy. Sedona’s Husted also said there were no endorsement regulations that prohibited him from participating. Katie Nelson, social media and public relations coordinator for the Mountain View Police Department in California, said that because the city’s policy prohibits taking paid trips on clocked time, she took a few days off from work to participate in the San Francisco meet-up.

Being wined and dined on a corporate tab makes people more receptive to their pitches. Everyone knows this. And that's why nearly everyone thinks things like this reek of buying off cops and politicians. Everyone, that is, but the cops and politicians being seduced by a whirlwind trip to a tech company's headquarters.

Once the dirty has been done, it's time to let what happened at Nextdoor HQ stay at Nextdoor HQ. This isn't so much a slogan as it is an existential lawsuit threat. Shut up, says Nextdoor, or it will be more than an un-invite to future events. It will be your proverbial ass in a litigation sling. Public officials owe a duty of transparency to their constituents. But Nextdoor is appending a whole lot of asterisks to the duties of public officials. The exceptions include a completely separate arm of the government.

In the terms of Nextdoor’s NDA, advisory council members are not allowed to release public statements about the partnership without the consent of Nextdoor, nor are they able to follow a court order to disclose any information deemed confidential by Nextdoor without alerting the company first.

And Nextdoor has made it easy for its snitchiest users to bring the government in on conversations other Nextdoor users might have thought were private. The platform can't allow users to file actual police reports but it does give users an option to screw other users over. A feature called "Forward to Police" allows users to send copies of private conversations to officers monitoring accounts. This feature is activated by police departments themselves, so those willing to further demonstrate their indifference for the people they serve can give people an one-click solution for all their snitching needs.

Sure, any participant in a private conversation could take screenshots and hand them to law enforcement. Removing the minimal tech hurdles, however, encourages people to use this option anytime they come across something that bothers them. It's a "speak to the manager" button, but one that potentially involves government-blessed use of deadly force. If people don't even have to leave their chairs to engage in SWATting-adjacent activities, they won't. Giving them a button just increases the chance someone's going to get hurt or killed.

At the end of the day, it's problematic all over. Public officials are endorsing a platform that paid to have them feel good about it -- both by covering their trip to San Francisco and by giving them the impression they are doing something to make their communities better by making them members of a private company's "Public Advisory Council."

Filed Under: law enforcement, nextdoor, police, social media, surveillance
Companies: nextdoor