A Fight Between Facebook And The British Medical Journal Highlights The Difficulty Of Moderating 'Medical Misinformation'

from the what-a-disaster dept

There are multiple efforts under way in the US to pass laws that require social media sites to take down "medical misinformation." As we've described repeatedly, these are really dangerous ideas. Bills like those from Senators Amy Klobuchar and Ben Ray Lujan seek to force social media to remove medical misinformation as declared by the Ministry of Truth... er... Secretary of Health & Human Services. Of course, it was not all that long ago that we had an administration that was actively anti-science, and wanted to declare anything that made the president look bad as "fake news."

Also, in the midst of a pandemic, when the data and the science are rapidly evolving, what might seem reasonable at one point, may later turn out to be misinformation -- and vice versa. Forcing down misinformation leads to all sorts of dangerous consequences. Hell, we saw this in China, where such a law was used to silence a doctor who tried to raise the alarm about COVID-19, and was forced to apologize for spreading "untruthful information online."

But there's another aspect of this which people rarely try to deal with: content moderation involves a lot of very gray areas and an awful lot of context, much of which may not be immediately obvious. An ongoing war of words between the former British Medical Journal (now just "The BMJ") and Meta/Facebook demonstrates nicely just how impossible it is to claim that "medical misinformation" must be taken offline. There's a bit of background here, and it's a, well, touchy subject, so try to go through the whole thing before you react.

First off, the BMJ is not, in any way, anti-vaccine. Somewhat famously, the BMJ was a key player in exposing the fraudulent behavior of Dr. Andrew Wakefield, whose fraudulent study created the modern anti-vax movement. That said, in November, The BMJ published an investigative journalism piece, based on a supposed "whistleblower" suggesting that there was some data integrity issues with the way Pfizer's vaccine was tested, specifically involving a research partner of Pfizer, Ventavia Research Group.

Ventavia responded to the allegations by noting that the supposed whistleblower in question had raised the issues a year earlier, and they were investigated and found to be unsubstantiated. That said, many reasonable people noted that this should be further investigated and worried that it might lead to further damaging the public's trust in science.

But, of course, you can fully predict what happened next. It didn't just "damage the public's trust in science," the BMJ article instead was instantly championed by all of the big anti-vax voices all over social media as "proof" that the COVID vaccine was dangerous and rushed into approval -- key talking points among that crowd, repeated despite tons of evidence that the vaccine is both incredibly effective and incredibly safe.

This resulted in Lead Stories, a fact checking organization, to fact check the article, and slap it with a "missing context" label, and calling into question the way that people were interpreting the article:

Did the British Medical Association's news blog reveal flaws that disqualify the results of a contractor's field testing of Pfizer's COVID-19 vaccine, and were the problems ignored by the Food & Drug Administration and by Pfizer? No, that's not true: Pfizer and the FDA were made aware of the allegations about the contractor in 2020. Medical experts say the claims aren't serious enough to discredit data from the clinical trials, which is also what Pfizer and the FDA say they concluded. The FDA says its position is unchanged: The benefits of the Pfizer vaccine far outweigh rare side effects and the clinical trial data are solid.

Because of this fact check and because of the way the article was being used in a misleading way by thousands of anti-vaxxers, users who tried to share The BMJ article were flagged with fact check warnings saying: "Missing context ... Independent fact-checkers say this information could mislead people," which is accurate, but incomplete, and very dependent on the context of who was sharing it and for what purpose.

The BMJ kinda flipped out about this and published an angry open letter to Mark Zuckerberg (who, I assure you, had nothing to do with the decision on the fact check and flagging). To be honest, I find the BMJ's anger here completely disingenuous. They act like they don't understand at all why Lead Stories highlighted the "missing context" point on their story, when -- of anyone -- the BMJ should be willing to acknowledge how their own article was being weaponized by ignorant anti-vaxxers.

But from November 10, readers began reporting a variety of problems when trying to share our article. Some reported being unable to share it. Many others reported having their posts flagged with a warning about “Missing context ... Independent fact-checkers say this information could mislead people.” Those trying to post the article were informed by Facebook that people who repeatedly share “false information” might have their posts moved lower in Facebook’s News Feed. Group administrators where the article was shared received messages from Facebook informing them that such posts were “partly false.”

Readers were directed to a “fact check” performed by a Facebook contractor named Lead Stories.[2]

We find the “fact check” performed by Lead Stories to be inaccurate, incompetent and irresponsible.

-- It fails to provide any assertions of fact that The BMJ article got wrong

-- It has a nonsensical title: “Fact Check: The British Medical Journal Did NOT Reveal Disqualifying And Ignored Reports Of Flaws In Pfizer COVID-19 Vaccine Trials”

-- The first paragraph inaccurately labels The BMJ a “news blog”

-- It contains a screenshot of our article with a stamp over it stating “Flaws Reviewed,” despite the Lead Stories article not identifying anything false or untrue in The BMJ article

-- It published the story on its website under a URL that contains the phrase “hoax-alert”

We have contacted Lead Stories, but they refuse to change anything about their article or actions that have led to Facebook flagging our article.

The BMJ open letter also gets unnecessarily snarky (which also seems out of character for a prestigious medical journal):

Rather than investing a proportion of Meta’s substantial profits to help ensure the accuracy of medical information shared through social media, you have apparently delegated responsibility to people incompetent in carrying out this crucial task.

That's ridiculous. Clearly this is a difficult situation. Even if the reporting was accurate -- there is crucial context here. Did the revelations support the claims of anti-vaxxers who were using it as evidence that the Pfizer vaccine was not safe? The answer is no, it did not. And there's a strong argument that The BMJ could have and should have made that point a lot clearer in their own reporting, recognizing how the article would be weaponized by grifters and fed to the ignorant.

Lead Stories then responded to the BMJ, in fairly great detail, more or less saying "you can't honestly be that naïve."

It is ironic to read that BMJ.com objects to the headline on Lead Stories' fact check of a BMJ.com article when the original BMJ piece carries a scare headline that oversells the whistleblower and overstates the jeopardy. Their November 2, 2021, headline "Covid-19: Researcher blows the whistle on data integrity issues in Pfizer's vaccine trial" is the reason BMJ.com's article has appeared in hundreds of Facebook posts and tweets, many by anti-vaccine activists using it as "proof" the entire clinical trial was fraudulent and the vaccine unsafe.

Lead Stories also points out that The BMJ's headline to its article is extremely misleading, as it can be read to say that there were data integrity issues with the entirety of the Pfizer vaccine test, rather than 3 sites out of 153, and then also highlights that the whistleblower in question is not a scientist who is an expert on this. It also notes that the whistleblower appears to have some... questionable beliefs and associations regarding vaccines:

The BMJ.com article eventually gets around to saying she worked at the lab for just two weeks. But BMJ's open letter fails to mention important context: The Brook Jackson Twitter account agreed with leading COVID misinformation-spreader Robert F. Kennedy Jr.'s criticism of the "Sesame Street" episode in which Big Bird encourages kids to get a COVID-19 vaccine. "Shocking, actually." she wrote in a November 9, 2021, response to a Kennedy tweet blasting Sesame Street (archived here). Elsewhere on Twitter, the Brook Jackson account wrote to a vaccine-hesitant person that vaccination makes sense if a person is in a high-risk category. When the U.S. 5th Circuit Court of Appeals ruled against a federal employee vaccine mandate, she tweeted "HUGE!" and not with a frowny emoji.

Lead Stories talked to Jackson, looked at available documents (after BMJ refused to permit us to see their basis for the story and did not make the documents available on a transparency site). Unlike BMJ.com, Lead Stories then tested Jackson's assertions with Pfizer, with the lab contractor in question and with the FDA and then published their responses. It's not at all clear yet whether there are data integrity issues if you ask the other stakeholders, and that's the crucial missing context. We also talked to experienced medical researchers for perspective, one of whose credentials BMJ editorial staff demeaned for reasons we can only imagine.

By talking to Ventavia, we contributed context BMJ.com missed: Ventavia said the whistleblower had not worked on the Pfizer trial, but Lead Stories set that straight by embedding in its story a copy of a letter, provided by Jackson in which she was expressly welcomed to the Pfizer trial team. That's what we mean by context.

The BMJ has thus far failed to document what is "inaccurate" in the Lead Stories fact check, but again oversells by using that and other name-calling to vent frustration at our documentation of obvious missing context

All of this involves an awful lot of judgment calls, understanding of context, and a lot more. But under a law that requires the pulling down of medical misinformation, how the hell would anyone handle this kind of scenario? The BMJ story isn't wrong per se, but there is a lot of important context that seems like it's missing (which Lead Stories highlighted above). On top of that, there's all the important context around how people are using the article and stretching an already weaker-than-it-seems story to pretend to be a lot more damning on the overall vaccine.

In other words, how the article is being represented and used is an important piece of context as well. And this is frequently the case with medical misinformation. People will take something that is factual or accurate, and present it out of context or in a misleading light, in order to make an argument that doesn't support it. So which part is the "misinformation" and how do you police that?

In an ideal world, we'd be able to see all the details and the back and forth, and figure it all out. Frankly, when I first heard about this -- via The BMJ's open letter -- I initially thought that the details would support The BMJ, and that Facebook mislabeled something (which, of course, happens all the time because of the old Masnick Impossibility Theorem). It was only after reading multiple articles on both sides of this, and going through the details of Lead Stories' process, that I realized that they had (to me) a much stronger argument, that there's an awful lot of important context that is missing from The BMJ piece that you would hope a journal like that would have considered before publishing the article the way in which it did.

But to expect every social media platform to be able to determine this on every piece of medical sharing out there is next to impossible -- and putting legal liability on top of it, as Senators Klobuchar and Lujan want to do -- would be dangerously impossible.

Filed Under: content moderation, context, covid, fact checking, health, health misinformation, journalism, misinformation, reporting, vaccines
Companies: facebook, lead stories, meta, pfizer, the bmj

Professor Removed From Teaching For Sharing A Downfall Parody Video

from the context,-people dept

If you've been on the internet for basically any length of time, you probably know about the Downfall parody videos, sometimes referred to as the "Hitler Finds Out" videos. These are videos that take a clip from a 2004 German movie about the final days of Hitler, and post over them English subtitles of Hitler getting angry over... just about anything. We wrote about it a decade ago, and while the Downfall parodies have become somewhat less common these days, it's still a bit surprising that anyone might be offended by them.

But, alas, in a yet another (more real world) example of how content moderation is impossible to do well, a popular senior lecturer of accounting, Catherine West Lowry, at UMass Amherst was removed from her teaching role after a student complained that she showed a Downfall parody about accounting made by a former student to the class (found via Reason.com).

To make the class more fun, Lowry had long offered students extra credit for producing entertaining or "fun" videos about concepts in the accounting class, and someone back in 2009 (at the height of the Downfall parody popularity) made this one about accounting concepts and the class:

On November 12th, Lowry showed that video to the class after some students asked her to share a video:

“The point was to engage students in an otherwise dry and difficult subject material,” Lowry said. “Accounting is really a foreign language for so many of these students.” The videos, she added, have proved “very successful with bonding with students,” and instructors at other colleges across the country have used them in their own classes.

Lowry occasionally shows past videos in class as a way of introducing a concept to students, but she hadn’t planned to do so on November 12. Still, a few students asked her to show a video at the start of class, she said, and the Downfall clip was relevant to the day’s lesson. “So I did it, and they clapped and loved it. And that was that,” Lowry said.

However, at least one students was offended. While none of the articles specifically describe what was seen as offensive about the video, it is implied heavily that someone took offense to the idea of showing Nazis/Hitler in class (not that the video or movie in any way glorify Nazism or Hitler). And rather than recognize that perhaps someone was overreacting, the Dean decided to yank Lowry out of class, which appears to have upset many of her students:

On November 14, Lowry sent an email to her students apologizing for the incident. “I want to apologize to any student who was offended by the Hitler xcredit video on Tuesday. My intent was never to offend or upset anyone. I was unaware of what was going on on campus,” Lowry wrote, according to a copy of the email provided by a student. “While I’ve received hundreds of wonderful, thoughtful, creative videos over the past 11 years, this issue, along with an earlier issue this semester, has caused the end of these extra-credit videos.

“I truly am sorry,” she continued, “and I have never wanted to offend or hurt any of my students. Your success and happiness is most important to me.”

Massey, the dean, briefly spoke to the class the next time it met. She announced that another Isenberg professor would take over teaching for the rest of the semester, according to three students The Chronicle spoke with. Some students shouted, “Bring back Cat,” a reference to Lowry’s first name. Eventually, several dozen students walked out in protest.

While some are arguing that this is another example of over-sensitive students, it's not clear that's the case at all (given that it appears many of the students were perfectly fine with this, and it was potentially the administration that overreacted). But, more to the point, it once again highlights the "impossibility" of content moderation, even in real life, rather than just on the internet. A key point that we've made about content moderation is that context matters, and everyone has different context, or may not be fully aware of the cultural context around any particular content.

That's likely the case here. The offended student(s) perhaps were completely unaware of the Downfall parody meme, and simply reacted to a professors showing a film depiction of Hitler. Without the wider context -- and adding in the other context of a rise in Neo Nazism -- I can see how someone may have overreacted. The real issue, then, is that the administration failed to be the cooler heads that prevailed, and defaulted to removing the professor from teaching. Also, as the Reason piece notes, since UMass is a public school, there are 1st Amendment implications in punishing her over speech.

In the end, it really does seem that the University and, in particular, Dean Anne Massey, should have been able to come up with a much more reasonable approach here. Merely notifying Lowry that at least one student was offended, seems like it would have been more than enough to keep things in perspective. Indeed, Lowry has said as much:

“I was shocked when this came out.” Had a student expressed concern, she said, “I would have been mortified. I would have addressed it. I’m not trying to make some statement here.”

But, rather than understand that and understand the context, the University and the Dean went to an extreme position instead.

Filed Under: anne massey, catherine west lowry, content moderation, context, downfall, hitler, offense, overreaction, parody
Companies: umass

Behind The Scenes Look At How Facebook Dealt With Christchurch Shooting Demonstrates The Impossible Task Of Content Moderation

from the it's-not-that-it's-difficult,-it's-impossible dept

We've been saying for ages now that content moderation at scale is literally impossible to do well. It's not "difficult." It's impossible. That does not mean that companies shouldn't try to get better at it. They should and they are. But every choice involves real tradeoffs, and those tradeoffs can be significant and will upset some contingent who will have legitimate complaints. Too many people think that content moderation is so easy that just having a a single person dedicated to reviewing content can solve the problem. That's not at all how it works.

Professor Kate Klonick, who has done much of the seminal research into content moderation on large tech platforms, was given the opportunity to go behind the scenes and look at how Facebook dealt with the Christchurch shooting -- an event the company was widely criticized over, with many arguing that they took too long to react, and let too many copies of the video slip through. As we wrote in our own analysis, it actually looked like Facebook did a pretty impressive job given the challenges involved.

Klonick, however, got to find out much more from the people actually involved, and has written up an incredible behind the scenes look at how Facebook dealt with the video for the New Yorker. The entire thing is worth reading, but I did want to highlight a few key points. The article details how Facebook has teams of people around the globe who are ready to respond and deal with any such "crisis," but that doesn't make the decisions they have to make any easier. One thing that's interesting, is that Facebook does have a policy that they should gather as much information as possible before making a call -- because sometimes what you see at first may not tell the whole story:

The moderators have a three-step crisis-management protocol; in the first phase, “understand,” they spend as much as an hour gathering information before making any decisions. Jay learned that the shooter seemed to be trying to make the massacre go viral: he had posted links to a seventy-three-page manifesto, in which he espoused white-supremacist beliefs, and live-streamed one of the shootings on Facebook, in a video that lasted seventeen minutes and then remained on his profile. Jay forced himself to watch the video, and then to watch it again. “It’s not something I would ask others to do without having to watch it myself,” he said.

If you think it's crazy to think that it might take up to an hour (I should note, this doesn't mean they always wait an hour -- just that it may take that long to gather the necessary info), Klonick demonstrates how the same basic fact pattern may present very different situations when understood in context. For example, you might think that a Facebook live video of one man shooting and killing another probably shouldn't be shown. But, context matters. A lot.

Understanding context is one of the most difficult aspects of content moderation. Sometimes, a post seems clearly destructive. In April, 2017, Steve William Stephens, a vocational specialist, shot and killed Robert Godwin, Sr., an elderly black man who was walking on the sidewalk near his home in Cleveland. Stephens said, bafflingly, that he had decided to kill someone because he was mad at his ex-girlfriend, and posted a video of the killing on Facebook, where it remained for two hours before the company removed it. People were horrified by how long it stayed up....

The fact pattern there is straightforward. A black man was shot on Facebook live. Facebook should take it down, right? But...

But disturbing videos may not always be damaging. In July, 2016, Philando Castile, a black school-nutrition supervisor, was shot seven times by a police officer during a traffic stop in Minnesota. Castile’s girlfriend, Diamond Reynolds, live-streamed the aftermath, as Castile bled from his wounds and died after twenty minutes. The footage arrived amid a series of videos depicting police violence against black men but was striking because it was streamed live, which exempted it from claims that it had been edited by activists or the police department before it was released.

If the "rules" say no live video of a shooting, you block the first one... but also the latter. Indeed, for a time, Facebook did block the latter, but that resulted in a lot of (reasonable) complaints, and Facebook changed its mind. Even though the basic fact patterns are the same.

Facebook initially removed the video, but then reinstated it with a content warning. To moderators looking at both, the videos might look similar—a grisly shooting of a black man in America—but the company eventually determined that the intentions behind the videos gave them distinct meaning: keeping up Reynolds’s video brought awareness to the systemic racism of the criminal-justice system, while taking down Stephens’s video silenced a murderer’s deranged homage to his ex-girlfriend.

In short: context matters a ton, and you don't always get the context right away. Indeed, sometimes it's very difficult to get the context. And, the same video in different contexts can be quite different. Indeed, this turned out to be some of the problem with the Christchurch video. Klonick details how just removing all copies of the video raised some questions about why some people were posting it:

This created an ethical tangle. While obvious bad actors were pushing the video on the site to spread extremist content or to thumb their noses at authority, many more posted it to condemn the attacks, to express sympathy for the victims, or because of the video’s newsworthiness. For consistency, and in deference to a request from the New Zealand government, the team deleted even these posts. The situation was a no-win for Facebook. Politicians were quick to condemn the company for the spread of extremism, and users who had posted the video in good faith felt unreasonably censored.

In other words, there are tradeoffs, and it's a no win situation. No matter which choice you make, some people are going to be (perhaps totally reasonably) upset about that decision.

And, of course, there was technical difficulties involved as well, though Facebook did move to try to minimize those:

By the time the handling of the Christchurch video switched to teams in the United States, some twelve hours after the shooting, moderators discovered a problem that they hadn’t encountered before at such a scale. When they tried to create a hash databank for the shooter’s video, users began purposefully or accidentally manipulating the video, creating slightly blurred or cropped versions that obscured the hash and could make it past Facebook’s firewall. Ahmed decided to try a new kind of hash technology that took a fingerprint from a vector of the video—its audio—which was likely to remain the same across different versions. This technique, combined with others, worked: in the first twenty-four hours, one and a half million copies of the video were removed from the site, with 1.2 million of those removed at the point of upload.

In short, there are lots of good reasons to complain about Facebook and to hate on the company. And it often does a bad job with its moderation efforts (though, they have gotten much better). But part of the problem is that when you're doing moderation at that scale, e mistakes are going to be made -- and some of those mistakes are going to be a big deal -- and some may be because of a lack of context.

Assuming that there's some magic wand that can be waved (as Australia, the UK, and the EU have suggested in recent days -- not to mention some US politicians) suggests a world that does not exist. It is not helpful to demand that companies magically do something that is impossible and that is driven by the fact that human beings aren't always good people. A more serious look at the issues of people doing bad stuff online should start with the bad people and what they're doing, not on blaming social media for being used as a tool to broadcast the bad things.

Filed Under: christchurch, content moderation, context
Companies: facebook

FBI Says It Can't Get Into 6,900 Encrypted Phones. So What?

from the doing-less-with-more dept

The new director of the FBI, Christopher Wray, has apparently decided to take up James Comey's anti-encryption fight. He's been mostly quiet on the issue since assuming the position, but the DOJ's recent calls for "responsible encryption" has emboldened the new FBI boss to speak up on the subject.

And speak up he has. Although the FBI still hasn't released the text of his remarks to the International Association of Chiefs of Police, more than a few sites are reporting it was the usual "go team law enforcement" boosterism, but with the added zest of phone encryption complaints.

He also spoke about roadblocks in dealing with cellphone encryption technology, saying that in first 11 months of the fiscal year, the FBI has been unable to access content from 6,900 mobile devices despite having the proper legal authority to do so.

"It's going to be a lot worse than that in just a couple of years if we don't come up with some responsible solution," he lamented. "I'm open to all ideas."

All ideas, maybe. But certainly not all viewpoints. The Deputy Attorney General has made it clear in multiple speeches he views phone encryption as the end result of tech companies' low-minded pursuit of revenue. DAG Rosenstein repeatedly emphasized US law enforcement measures success by a different standard -- a standard mercenary phone manufacturers couldn't even begin to approach.

Of course, the FBI head also nodded towards the importance of device security.

"I get it, there's a balance that needs to be struck between encryption and the importance of giving us the tools we need to keep the public safe."

But does he actually "get it?" What if the status quo is the ending "balance?" Would that satisfy Wray? Doubtful. He wants law enforcement-friendly security holes and he wants tech companies to provide them voluntarily.

The number of locked devices means nothing. The "6,900 mobile devices" will be 8,000 or 10,000 by early next year -- sound-and-fury totals signifying nothing. It was 6,000 phones when Comey trotted out numbers earlier this year. It will always increase and it will always grab eyeballs but it won't ever mean anything unless the FBI is willing to provide a lot more context.

Is the FBI just spectacularly bad at cracking cell phones? We're not hearing these complaints from local law enforcement agencies with less expertise and lower budgets. Is the FBI just not even trying? Is it not using everything it has available -- including a number of judicial forgiveness plans for rights violations -- to get into these phones? It's inconceivable the nation's top law enforcement agency is experiencing nearly a 50% failure rate when it comes to locked phones.

All Wray says is there are 6,900 phones the FBI hasn't gotten into. Yet. What's never discussed is how many investigations resumed unimpeded by cellphone encryption. Phones are not the sole repository of criminal evidence in any investigation. The FBI has options even if the seized phone seems impermeable. The FBI insinuates it's being stopped, but never specifies how many of these phones have resulted in terminated investigations.

It's just a number, divorced from context, but one the FBI can ensure will always be larger than last time it was mentioned.

Filed Under: chris wray, context, crime, encryption, fbi, going dark, phones

Seeking Clarification: Is James Woods A Hypocritical Asshole?

from the good-for-the-goose dept

Oh, James Woods. He has now "settled" the ridiculous lawsuit he filed against someone mocking him on Twitter... but is still fighting a fairly similar lawsuit that was filed against him -- complaining that it's an attack on his free speech rights.

If you don't recall, the rather opinionated actor sued a trollish Twitter user who went by the name Abe List, after Abe referred to Woods as a "cocaine addict" in a clearly hyperbolic tweet. As the case progressed, "Abe List" died unexpectedly, leading to Woods obnoxiously gloating on Twitter that List had "dropped" his anti-SLAPP appeal, and when people pointed out it was only because List had died, Woods demonstrated what kind of character he is by cheering on the fact that someone died.

Nice guy, huh?

And, of course, that leaves out that Woods had a history of tweeting similarly hyperbolic statements about others who he disagreed with:

So, Woods was already looking fairly hypocritical here, but as you'll see soon, that level of hypocrisy is becoming more pronounced.

Either way, after "List" died, you might think that Woods would just drop the case, but given his clear animosity (see tweet above) towards a guy making a silly statement on Twitter, he kept the case going in order to unmask the real identity of "List" and to potentially pursue the case against his estate. As first revealed by Eriq Gardner at THREsq, Woods has finally agreed to settle the case, but at least part of the terms of the settlement is that he got attorney Ken "Popehat" White (who you probably know if you're reading Techdirt, and who has represented us at times) to write a silly letter stating what basically everyone in the world already knew: specifically that when Abe List referred to Woods as a "cocaine addict" it wasn't meant to be taken literally:

From attorney Kenneth White, the letter states, "On behalf of my client — the defendant referred to as 'Abe List' in the lawsuit filed by James Woods — and my client's surviving family, I acknowledge that they are not aware of any facts to suggest that Mr. Woods has ever been a cocaine addict or used any other drugs."

Frankly, this feels more like an attempt to try to humiliate Ken (which, uh, generally isn't a good idea), but the end result just makes Woods look ridiculously and almost comically petty.

Oh, and back to the hypocrisy thing. Earlier this year, we also noted, with some amount of irony, that Woods was now on the receiving end of a very similar lawsuit. A woman, Portia Boulger, sued Woods for calling her a "Nazi" in a tweet that was actually a case of mistaken identity. As we pointed out, unlike some people, we can remain true to our principles, and we believe that Boulger's lawsuit against Woods is just as misguided and just as much as a SLAPP suit as Woods' lawsuit was against List.

Either way, in that case, Woods' lawyers filed a motion for judgment on the pleadings last month, which makes a bunch of statements that sound a little odd, considering they're on behalf of someone who was (at the time) still engaged in litigation against someone who jokingly called him a "cocaine addict" on Twitter.

This case is simply an unsuccessful attempt by Plaintiff to quell the free speech rights of Mr. Woods, a conservative actor. Indeed, Plaintiff's claims for defamation and false light/invasion of privacy both fail as a matter of law. First, Plaintiffs claim for defamation fails as a matter of law because Mr. Woods' allegedly defamatory question is not a statement of fact. Nor would a reasonable reader interpret Mr. Woods' question--seeking clarification--as inferring any factual content. Likewise, Plaintiff's false light/invasion of privacy claim fails as a matter of law because no misrepresentation regarding Plaintiff's character, history, activities or beliefs is present in Mr. Woods' tweets, much less a misrepresentation that would warrant a reasonable person, in Plaintiff's position, to take the serious offense required to succeed on a false light/invasion of privacy claim.

That's... an interesting way of saying what happened. As a reminder, here's how THResq described the tweet that Woods sent:

This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”

So, yeah, his tweet was a "question" but a "reasonable person" would be unlikely to think that Woods was "seeking clarification." Rather most reasonable persons would likely believe that Woods was implying strongly that Boulger, a Bernie Sanders supporter, had gone to a Trump rally and pretended to be a Nazi supporter of Trump (which she had not).

But, really, it's the "reasonable person" line that's the kicker here. Because that same "reasonable person" looking at Abe List's tweets would similarly have been just as unlikely "to take serious offense" to that tweet. And, yes, there's something fairly ridiculous for Woods to be whining that someone is trying to "quell" his free speech (even if true) when he was doing something quite similar at the very same time.

Later in the motion, Woods' lawyers (properly) point out that "the general context of the statement" and the "broader context in which the statement appears" are a critical element in determining defamation -- which, again, seems silly given that same test, applied to the guy Woods' sued would likely have worked very much against Woods' defamation case.

Finally the truly amazing argument, given Woods' lawsuit against List. I'll just post the paragraph here:

Likewise, Mr. Woods' allegedly defamatory question appeared on his personal Twitter account, in the midst of a highly-contested and widely-covered presidential political campaign.... A personal social media account, such as an individual's Twitter account, cannot reasonably be interpreted as a forum for fact reporting.... Rather, such a context is akin to a forum or editorial section of a newspaper where a reader would expect to see statements of opinion.... Additionally, Twitter, a social media platform powered by individual user accounts, can be described even more so as a "well established genre of opinionated speech as it is commonly known the average Twitter user is not "normally engaged in the business of factual reporting or news dissemination."

What the actual fuck, James? I mean, I agree. That paragraph is 100% accurate. But it sure seems... massively hypocritical to make that argument while suing someone for their similarly silly tweet about you.

Either way, if you're going to go around suing people for trollish tweets, perhaps don't go around posting trollish tweets yourself. And, if you do and even continue to pursue them after their death, don't then argue in a different lawsuit a bunch of points that totally undermine your own lawsuit. I mean, unless you want to be called out as a raging hypocrite.

Filed Under: abe list, context, defamation, free speech, james woods, ken white, portia boulger, rhetorical hyperbole, slapp

No, The Wall St. Bull Sculptor Doesn't 'Have A Point'

from the nope dept

Last week, we wrote twice about sculptor Arturo Di Modica and his claim that the "Fearless Girl" statue, that was placed last month in front of his "Charging Bull" statue, violates his rights. As we explained, in detail, he has almost no legal case here. His letter to New York City argues three possible claims of action -- all of which would almost certainly be losers in court (as we detailed in that last post).

However, I still have seen a bunch of people arguing in support of Di Modica, claiming that he "has a point." Many have pointed to a blog post by Greg Fallis that is literally titled "Seriously, the guy has a point." Others have raised other issues in discussions I've seen (and taken part in...) on Twitter and Facebook. I still don't think he has any point at all, but I wanted to do a post addressing each of the key issues I've seen raised, and explaining why I think they fail as legitimate arguments.

Fearless Girl is an ad

I had debated mentioning this in the first post (and only obliquely noted that "there have been some criticisms" of Fearless Girl), but decided it was really meaningless. But people keep bringing it up, so let's address it. Yes, the Fearless Girl statue is an advertisement of sorts. The whole thing was created and financed by State Street, a massive investment firm, with help from McCann, one of the giant ad agencies. And a big part of the criticism is that State Street has a "gender diversity index" whose ticker symbol is SHE, focused on tracking the performance of "companies with the highest levels within their sectors of gender diversity on their boards of directors and in their senior leadership." And Fearless Girl has a plaque that says: "Know the power of women in leadership. SHE makes a difference." Many have, quite reasonably, argued that (especially given the capitalization of SHE) Fearless Girl is just an advertisement.

And the response to that should be... so what? As we've pointed out for many, many years, all content is advertising in some sense. It may be advertising for the artist. It may be advertising some idea. It may be advertising a theme. Di Modica's bull was "advertising" the resiliency of American capitalism. Just because it's advertising doesn't mean it's not artwork. And even advertising can have a positive social message. So, the claim that it's "advertising" doesn't really impact anything here. Yes. It's advertising. So what? It's also still art, and was created by a real artist whose own work and talents are unfairly diminished when you say that it's not art just because someone paid for it and it advertises something else. Or as our own Leigh Beadon points out:

Some are arguing that because there's money involved, that somehow changes things, but I don't see how. After all, the bull itself celebrates money and markets, so if you're suddenly arguing that money is bad, well, then... I'm not sure how that supports the argument that the artist has a point.

It uses the only copy of Charging Bull

This is the argument I've heard most often after the "it's an ad" argument, and I'd argue it's more persuasive, but still not very persuasive. The argument here is that, unlike a remix or standard appropriation art, where the original work remains untouched, the placement of Fearless Girl effectively incorporates Charging Bull such that Charging Bull can no longer be separate from Fearless Girl. If you are to accept the idea that putting another artwork near an original piece of artwork can never be allowed, even in a public place, and even if the latter piece incorporates the original to comment on it... well, you're going to run into a lot of problems pretty quickly. Because then you're arguing two things that are pretty difficult to justify: (1) that an artist should get absolute control over any other works near his or her own artwork, and (2) that artwork is defined by what is around it and so the context can never change.

Both things seem unjustifiable. On the first point, what if, instead of the Fearless Girl statue, someone created a placard (an artistic placard) protesting what they believed was unfair sexism on Wall Street and stood next to the bull? Would that lead to the same outcry that this somehow "diminished" the Bull? Or imagine a world in which an artist could force a museum curator -- or a private collection owner -- to not display some other artist's artwork next to his or her own, because the juxtaposition of the two pieces was deemed by the artist to be unflattering? Most people would think that is crazy. How one puts up a piece of artwork, and what pieces are put around it, are the decisions of those who control the physical pieces and have the rights to display them. Here, Di Modica dumped his bull on the streets of New York, and New York now has possession of the physical statue. It can decide how to display it.

Plenty of museums use the careful placement of different works to create juxtaposition and even direct criticism or commentary. It would be crazy to think that an original artist could bar any of that.

As for the second point, we don't have to look very far to see how silly it is: Di Modica himself placed the bull in the street in front of the NY Stock Exchange, specifically making a point about that particular financial market. He was commenting on the NY Stock Exchange and the fact that it represents a form of capitalism and free markets (whether or not you agree with that is beside the point). And yet, NYC moved Charging Bull around the corner. It is no longer directly in front of the NYSE, but people still get the context and they understand the intent.

I've seen people arguing that if Fearless Girl were removed to somewhere else it wouldn't make the same point, but that's not necessarily true. People are not dumb. They can understand context. And they can see how context changes. The Bull moved from the NYSE to a nearby park, and yet people still recognize that Charging Bull is commenting on the stock market and the Wall St. ethos. Yes, it helped where it was initially placed, but the mythology around the placement has stuck with the Bull. The same is likely true for Fearless Girl. Were it -- or the Bull -- to now move, many people would still remember and recognize the initial juxtaposition, and understand the intent (again, even if it was an ad).

But Fearless Girl changes Charging Bull's meaning

I've seen this from a few people, arguing that the artist must have some right of "control" over the meaning of the statue. But that's just not the way it works. This is a similar argument that we've seen in lots of copyright disputes over the years -- especially cases involving fair use. People seem to ascribe a somewhat mythical concept of "control" or "control of message" that an artist can have over their artwork. But that's never been true. Once a work of art is released to the public, the public interacts with it and interprets it and that's wholly outside the control of the original artist. Sometimes, over time, people's impression of a work of art can change drastically -- from bad to good or from good to bad.

Indeed, that's a big part of art. Art is barely art if there's no reaction to it. The reaction itself is a large part of the art, and that reaction is not dictated by the artist. Sometimes that reaction is just how people see things. Sometimes that reaction is in how it inspires others to create other works. Art is often defined by the reaction to it. And here, if that reaction changed, that's just a part of the nature of art and culture and society and how those things interact. Over the years, for example, there have been debates about the artistic value of works that supported, celebrated or were associated with bigotry. And there have been protests against them. But that's allowed, because people are allowed to react to art how they want, and sometimes their reactions can impact how others see things as well. Some people who grew up with the Confederate flag as a symbol of the south have grown over time to realize the racist connotations it can hold. Should we not allow people to raise those issues and get people to rethink their support of that flag?

Control in art is an illusory concept: people insist it's there, when it really is not. An artist has control over the artwork while they're working on it and before they've released it to the world, but once it's out there, once it's become available to interact with the reactions of the public, control is lost. And that's a good thing. It's that loss of control that makes art art.

You may not like Fearless Girl. You may not like Charging Bull. You may not like capitalism or advertising -- or maybe you do. You may like control. But the simple fact is that none of the arguments that Di Modica and his supporters are making make much sense in the grand scheme of things. The bull can survive Fearless Girl and so can Di Modica.

Filed Under: art, arturo di modica, charging bull, context, control, copyright, fearless girl, moral rights, wall street
Companies: state street

Can You Defame Someone By Directly Creatively 'Quoting' Them? New York Court Says You Can.

from the the-64-character-question dept

The Daily, a short-lived, iPad-only "newspaper," may be in the process of setting a defamation land speed record: 64 characters.

The defamation lawsuit, which just survived The Daily's motion to dismiss, revolves around the following statement -- half of a comment tweeted by the plaintiff, New York DJ Rashad Hayes.

I was gonna start shooting in the air, but I decided against it.

There's a lot of context surrounding this quote, but it was removed (and recontextualized) by The Daily Holding.

DJ Rashad Hayes was an employee at a club where two recording artists -- Drake and Chris Brown -- participated in a bar brawl over Rihanna, Brown's periodic girlfriend and assault victim. Bottles were thrown. Fists were thrown. And, after it had all died down, Hayes -- who was not at the club that night -- engaged in Twitter discussions about the event, delivering the following tweet as a joke:

I was gonna start shooting in the air, but I decided against it. Too much violence in the hip-hop community.

The Daily covered the bar brawl for its iPad subscribers. It decided to use Hayes' tweet to liven up the story. First, it stripped away half the tweet. Then it stripped it of its context, divorcing it completely from some jokey Twitter trash talking between friends and hip hop fans.

Finally -- and most damningly -- it completely recontextualized Hayes' tweet by turning it into a statement made by someone actually present at the club on the night of the brawl.

On June 15, 2012 the Daily posted a news article about the altercation, titled "Ri-Ri's Rumble," which included the following statements:

" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'

"Perhaps to show he didn't care that Drake had hooked up with his ex — or to flaunt the fact that he's rekindled his romance with her — Brown sent a bottle to Drake's table. Drake sent it back with a note, a witness told the New York Post. It read, I'm f***ing the love of your life [Rihanna], deal with it.'

"And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club. I was gonna start shooting in the air but I decided against it,' Hayes said."

Not only did the iPaper recast a tweet as an eyewitness statement, but it also allegedly made up every other quote from Hayes it included in its article.

Specifically, plaintiff alleges that defendants falsely identified him as a witness who made the statement: "So we're sitting in there. Me, a couple of others, Chris . . . Drake comes in and keeps eyeballing the table," when he never made any such statement to anyone. Plaintiff further alleges that the article implied that he had stated, "I was gonna start shooting in the air but I decided against it" to a reporter in seriousness, when that statement was only a tweet he made in jest. Further, plaintiff alleges that he was not at WIP on the night of the fight and that by failing to publish his full tweet, the Daily changed it from one eschewing violence, to one that made it look as if plaintiff were a "gun-toting psychopath with an itchy trigger finger."

Hayes claims the article resulted in him being banned by the club and ended negotiations for a permanent position as a DJ.

The Daily claimed it could not be held liable for publishing Hayes' "own words," even considering the removal of context. It also claimed the quotes it allegedly made up were not libelous.

The court agreed with part of its argument.

With respect to the first alleged defamatory statement (" So we're sitting in there. Me, a couple of others, Chris,' eyewitness DJ Rashad Hayes said. Drake comes in and keeps eyeballing the table.'" [boldface omitted]) and the allegedly fabricated portion of the second statement ("And then things erupted. As rappers Maino and Meek Mill looked on, Brown and Drake's entourages threw bottles and fists throughout the club." [boldface omitted]), neither the language, nor the implication that plaintiff was a witness to the incident, are libelous on their face, meaning that the complained of words are not commonly understood to subject a person to public contempt or ridicule. Stated another way, the import of this statement is innocent on its face since it merely conveys that plaintiff was sitting at a table observing his surroundings; even if false, this statement is not defamatory.

As for the "own words" defense, the court says context matters, even when directly quoting someone.

Courts typically compare the complained of language with the alleged truth to determine whether the truth would have a different effect on the mind of the average reader. Although it is conceded that defendant accurately quoted plaintiff's own words from Twitter, that does not necessarily mean that the statement could not have produced a worse effect on the mind of a reader than the truth as alleged by plaintiff. A reader could read the alleged defamatory statement in the context of the rest of the article and think that plaintiff was actually present in the club, prepared to shoot a firearm; whereas, a reader of plaintiff's isolated statement on Twitter may not have the same impression. In this unique case, the context of the two versions of the same statement is crucial.

[...]

Even if we were to adopt the "own words" defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader.

To that end, the court denies The Daily's motion to dismiss. Hayes is instructed to enter a "show your math" pleading for special damages -- something more specific than the $3,000,000 he argued he was owed (without support/documentation) in his original complaint.

So, the truth/"own words" isn't an infallible defense to defamation accusations. However, the truth in this case wasn't the whole truth. And the "own words" were stripped of their original context and injected into an entirely (and allegedly entirely fabricated) narrative. So, the normal defamation accusation defenses remain solid. The Daily just went out of its way to severely damage its own safety valves.

Filed Under: chris brown, context, defamation, drake, new york, quoting, rashad hayes

Pro Music Artists/Reps Force Shutdown Of Awesome Fan-Music Contest For Video Game

from the way-to-go,-guys dept

I've never hidden my perhaps strange fascination with video game music. Everything from soundtracks to fan-made remixes, it's something that I love. But, for some reason, video game music for many people isn't so much a lark as a point of major industry contention. Recently we discussed how one composer's union turned into his enemy when he was simply working on a video game. The latest example, however, details how apparently professional musicians and/or their representatives got a game developer to shut down a fan-music contest out of what seems to be pure spite.

Some background is in order. Several years ago, developer Red Thread Games produced two insanely good point-and-click adventure games, The Longest Journey and Dreamfall: The Longest Journey. For the third installment, the team decided to turn to Kickstarter for funding, asking for $850k to produce the game and instead getting over one and a half million dollars in funding from fans. It's everything you want out of a Kickstarter story, with a great team organizing their rabid fan-base to both make money and produce another awesome game. And, while Red Thread Games already had a music composer on staff to create the larger soundtrack composition, the team wanted to give a nod to their dedicated fans and set up a contest by which fans could compose background/ambient music for small sections of the game, with the winners of the contest having their compositions included in the eventual release.

And that's when everything went to hell.

Supposedly professionals within the music arena felt as if the contest was designed to exploit fans and get a hold of royalty-free music for the game, a similar argument that originally caused The Fine Young Capitalists campaign to get shutdown.An update on the official Kickstarter page for Dreamfall: Chapters The Longest Journey details that the contest had been cancelled due to the conflict surrounding the event. As noted on the update, the decision is final and the contest won't be returning.

“We do understand the different points of view and the reasons behind some of the backlash, even though we also feel our intentions were perhaps misrepresented and misunderstood. This was not an attempt on our part to commission free music for the game — we already have a fantastic score, a professional composer and some diegetic music — but rather a response to the community asking for a chance to get their music into the game. We felt this competition could benefit both the game and our fans.”

And so concludes the attempt by Red Thread Games to connect with their fans in possibly the most meaningful way: inclusion within the project. A fan contest for small amounts of music was done in by industry musicians with no skin in the game. The backlash in the comments on the project, as well as on Twitter and other social media, made the developers out to be greedy robber barons looking to avoid paying a professional musician, which is an interesting theory considering the game already has a professional composer on staff. This was all about letting the fans have some fun, but the industry shouted it down until the project was shut down.

The sad reality here is that someone who could have been thoroughly talented, and just needed an opportunity to get their music out there, had a potential avenue to a career in music cut short. This isn't to say that anyone who submitted music to the contest could have become the next Jesper Kyd or Marty O'Donnell, but killing these kind of opportunities to bridge the connection between developers and gamers only hurts game culture. Could you imagine if the same thing extended to the games arena and game jam contests came under the same fire? It's like killing off the potentiality of future artists before they even have a chance to shine.

That last bit is of extreme importance, because it's the correct rebuttal to anyone involved in blasting this contest who also says they were doing so to protect the music industry. No, you weren't. You were just being dicks. As a result, a great game is a little less fun and none of you are any more hired for the project today than you were yesterday. Bang up job all around.

Filed Under: context, creativity, crowdfunding, culture, dreamfall, fans, longest journey, music, musicians, video games