…My mother used to say, when she reminded my siblings and me to keep still tongues in our heads.
As a general rule, it is a bit discomforting to reach one’s mid-thirties and discover that one’s dear old ma was right more often than not, but there it is.
I’ve been put in mind of my mother’s injunction (always delivered with eyebrow arched, and often over the rim of a teacup) by various recent events: Alan Jones undone by someone recording an ill-mannered comment and then broadcasting it, the sacking of Reddit ‘character’ Violentacrez from his job once Gawker disclosed his identity, the prosecution of Matthew Woods (here in the UK) for tasteless and (arguably) paedophilic comments about murdered schoolgirl April Jones. There are legions of similar cases, and my purpose here isn’t to survey all or even most of them. What I want to do instead is focus on some quite profound social implications.
Those three stories represent an escalation, which is why I selected them. At least initially, Alan Jones was brought down in a very conventional way: a journalist recorded Jones’s words, and then disclosed them through a newspaper. The journalist used a smartphone, of course, but in days gone by journalists routinely hid dictaphones in handbags and coat pockets. This much is not new. However, after the journalist did his conventional work, social media took over, turning a weak weapon (the boycott) into one of staggering power.
In days gone by, only very powerful trade unions or environmental organisations could make a decent fist of secondary boycotts, and then only sometimes, typically where they commanded strategic choke points (the docks, say). Now, social media allows individuals to turn the weak primary boycott of yore (‘No Norwegian Tuna!’) into a successful secondary boycott through sheer weight of numbers and ability to communicate their message far and wide. The relationship between what the Teamsters or the BLF used to do with picket lines and what Facebook group ‘Destroy the Joint’ did to Alan Jones’s advertising revenue is tenuous at best–but the effect is remarkably similar. If Jones can’t reclaim his advertisers, then he may be finished or, in the alternative, he may have to change his style of presentation. Hold that last thought.
Violentacrez (Michael Brutsch) relied on both his tech savvy and his friends in the Reddit community to keep his identity a secret, despite the fact that–like many Americans–he was employed under an ‘at will’ contract with his and his disabled wife’s health insurance tied to that job. Eventually, he pissed off enough people to mean that he was ‘outed’ and his online activities disclosed. Within 24 hours, he was sacked. In Britain, he may have been able to raise an unfair dismissal claim, but not in the US, where there are very few protections for employees. If Brutsch wants to work again, he will almost certainly have to be very pleasant and amenable towards anyone with whom he comes in contact, both online and off. Once again, hold that last thought.
Matthew Woods made disgusting and arguably paedophilic comments about April Jones on Facebook, where–as is always the case–they were preserved in digital aspic. He was then prosecuted under s127 of the Communications Act 2003, which reads:
Improper use of public electronic communications network
(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a)sends by means of a public electronic communications network, a message that he knows to be false,
(b)causes such a message to be sent; or
(c)persistently makes use of a public electronic communications network.
(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
His conviction is a summary one, and will be ‘spent’ quickly, but he will probably have to be very careful to be nice to people if he wants to work, at least in the short term. Ironically, he is probably in a better position long term than Brutsch: many British employers have a sense that once someone has repaid his debt to society, then he should be given a second chance, especially if the person in question is young (under 25, say), as is Woods.
It is ironic, I think, that the country with better free speech protections (the USA) will make life harder for Brutsch than the country (the UK) that prosecutes offensive speech, which has sent Woods to gaol. Again, hold that thought.
A new (old) way of living in the world
In the distant past, people lived in small communities for the most part and everyone knew everyone else’s business (‘whose boots were under whom’s bed’, as my mother used to say). Of course, certain societies could produce partial exceptions to this rule: the great cities of the Roman Empire or Ming China were large enough to allow anonymity, and there is fairly good demographic evidence that 40% of the population of Roman Italy lived in urban centres during the first two centuries of our era. For a pre-industrial society, this is staggeringly high, and perhaps accounts for the ‘lifestyle diversity’ of the Roman world. People could move away from their youthful cockups and disappear into the city, or seek out other people who wished to live ‘alternative lifestyles’. The pacifist, vegetarian Pythagoreans are a classic example (they lived in communes), but so was ancient Alexandria’s thriving LGBT community, which Lorenzo documents beautifully here.
This anonymity and its locus in great cities intensified as the Industrial Revolution gathered steam, and for the last 200 years or so the freedom with which we choose our associations, our residences, and our lifestyles has become a staple of the world that the free market has made:
Steven Horwitz will argue that the enhanced freedom with respect to family choices that has characterised the modern family and is celebrated by those on the political left, is largely a product of the economic system, market capitalism, which they often reject. At the same time, those on the right who are troubled by these changes in the family, including the demand for same-sex marriage, need to realise that such cultural changes are an inevitable by-product of the economic freedom they claim to celebrate. Steven will argue it is capitalism that is the main driver of the evolution of the western family and the wider array of family structures, which characterises the 21st century, representing an increased cultural freedom brought on by the freedom to engage in capitalist acts between consenting adults and the wealth it brings in its wake.
At some point in between the great cities of antiquity and the Industrial Revolution, however, we have forgotten how precious is widespread anonymity, and how rare it is in the broad sweep of human history. We have forgotten the scold’s bridle and the stocks, both of which were used (for the most part) to punish speech infractions, to make people ‘nice’, to force them to ‘mind their manners’. We are horrified, of course, with the distance provided by modernity, but in small communities where an inability to play well with others could have extraordinarily bloody consequences, the reasons for their existence are obvious.
Even the Romans–less inclined to punish for speech infractions than later societies–had the legal status known as ‘infamia’, which was a court order to the effect that a given individual had no reputation to defend. It still exists in attenuated form in the modern law of tort and delict, and is why Geoff Clark, for example, brought suit against Andrew Bolt under s 18C of the Racial Discrimination Act and not in defamation, as Legal Eagle points out:
As I’ve mentioned in my previous posts, there are a number of reasons why the plaintiffs would not have wanted to pursue individual defamation claims. In addition, the collective nature of the action is important. There is strength in numbers, and it was clearly advantageous for some of the plaintiffs with weaker claims to be in a group with stronger claims. I can’t imagine Geoff Clark would have gotten very far with defamation on his own, for example. Even if Bolt’s columns had been defamatory and there had been no available defence, I can’t help thinking of the case of Grobbelaar v News Group Newspapers Ltd  UKHL 40,  1 WLR 3024, where the former Liverpool FC goalie sued The Sun for libel. (I always pronounce Grobbelaar’s name in my head with a Skouser accent, incidentally). Grobbelaar was intially awarded £85,000, but on appeal, the House of Lords slashed his award to £1 (the lowest coin in the realm) and ordered him to pay The Sun’s costs, estimated at £500,000. This kind of redress is sometimes described as “contemptuous damages” – not just nominal, they are downright contemptuous of the plaintiff.
Lord Bingham’s observations in that case are so similar to the way Roman courts framed infamia rulings that it is worth quoting them here, rather than digging up something from Ulpian or Gaius. The fact that the ruling involves a sportsman (as it so often did in the Roman world) is salutary:
The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper published its first articles about him, the appellant’s public reputation was unblemished. But he had in fact acted in a way in which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on my interpretation of the jury’s verdict, it was entitled to have published, the appellant would have been shown to have acted in a way which any right-thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.
Infamia in the Roman world did not mean gaol time–as it has for Matthew Woods in the modern United Kingdom. It did mean being fired from one’s job, an inability to give evidence in court, a huge loss of social standing, and sometimes a steep fine (if injurious speech had been directed at a named individual). Dissing the military often attracted infamia, something that should resonate for Azhar Ahmed as he completes his community order:
A man who posted an offensive Facebook message following the deaths of six British soldiers has been given a community order.
Azhar Ahmed, 20, of Fir Avenue, Ravensthorpe, West Yorkshire, was found guilty in September of sending a grossly offensive communication. He said he did not think the message, which said “all soldiers should die and go to hell”, was offensive.
Ahmed was also fined £300 at Huddersfield Magistrates’ Court. He will have to do 240 hours of community service over a two-year period.
Ahmed was charged after the mother of one of the soldiers read the comments and was so upset she called the police.
Although Roman jurists decried the extra-legality of the practice, it was also possible for an individual to be considered infamis within his or her own community without a court order; his or her speech and habits would sometimes be policed by local worthies (often town councillors). The only solution, as Gaius observed at one point, was to move away when it became unbearable.
Into, one presumes, the nearest large, anonymous city.
Roman infamia, then, was very close to what has been done to Michael Brutsch. Unable to control his tongue, society has controlled it for him. He is without a job, and in a manner redolent of the Roman tendency to allow an infamis individual’s family to crash and burn with him, his disabled wife will also suffer. This, of course, is a means of preserving social order, and resonates with some of the observations Lorenzo makes about Chinese society.
Preserved for all time
What makes the modern version of infamia different from the Roman version is the fact that there is no escape: as Malcolm Turnbull points out in his Deakin lecture, the Internet never forgets, even if we may be inclined to. It is also ubiquitous. Persons declared infames in modern terms cannot take Gaius’ advice and simply run away:
So now as it is so cheap and effortless to remember and we live more and more of our lives online, how can we forget? For millions of years the frailty of human memory has deleted recollections, but the digital brain that is the Internet never forgets.
You had forgotten being drunk and stupid at a party at university–so had everyone else by the way. But someone took some pictures, put them on Facebook, tagged you and now years later they are turned up in a search by your would-be employer.
Millions of people today converse with their friends online, on Facebook or similar sites, by email, by text message. They are creating a transcript of their lives. So how can they forget the cruel slights of the year before last – the human brain defaults to delete, the digital brain defaults to remember, forever.
How can we forgive, if we cannot forget?
And it is not just information we, or our friends posted, that can come back to haunt us.
Viktor Mayer Schonberger in his book Delete gives the example of a woman who while a teenager had broken the law and gone to prison. Once released, she got her act together, moved to a different city, found a job, got married, had some kids and established her happy family with her past far behind her. Or so she thought until one day one of her own children’s classmates finds a website with mug shots of former convicts. Before too long a decade as a mother, a trusted employee, a loving wife was swept away. She was once again the ex-convict.
Part of the problem, of course, is our chronic tendency to overshare: a friend who also happens to be an NHS Consultant pointed out that lots of doctors are active on Twitter, but few lawyers are. I explained that for lawyers, it is far easier to enliven Cameron’s First Law: lawyers are expected, both socially and by our professional associations, to watch what comes out of our mouths in a way that doctors aren’t. However, it is worth remembering that ‘lawyer’ is an employment classification. No-one is a lawyer 24/7.
I also see various friends cheefully gabbling (on Facebook and Twitter) about everything from their mental illness to their adventures in polyamory to their inability to pay their bills from one week to the next and often catch myself asking: do you not want a job? Do you not realise how this looks? Do you not realise how the Internet never forgets? In many respects, indiscretion is worse than drunken pictures: one friend who grew up in Fife observed (astutely) that a Scottish employer coming across a Fifer’s Facebook profile sans nightclub pics or football silliness is apt to think the whole thing unreal.
Not about free speech
As should be reasonably obvious, I am opposed to gaoling or awarding damages against people for stupid things they say online unless their words would also amount to a crime or delict in the offline world: incitement, harassment, breach of the peace, defamation. I think s 127 of the Communications Act 2003 is a pox-ridden excrudescence on the British body politic. My view of s 5 of the Public Order Act (which is to similar effect as s 127, but for the offline world) aligns with that of comedian Rowan Atkinson.
However, I also think reducing the opportunities for behavioural policing afforded by social media to a debate about freedom of speech begs the question in many ways: Michael Brutsch is protected by his country’s First Amendment, but there he is, jobless and without health insurance, and infamis all over the planet, as well as mulishly unaware of the seriousness of his predicament (if this piece in the New Yorker is to be believed). Matthew Woods was only prosecuted after a crowd of people gathered outside his house, much like the Roman women who would generate a racket with saucepans and skillets outside the villa of an individual considered infamis. Ditto for Azhar Ahmed (his online comments were found by a soldier’s bereaved parent). The Internet may have been developed by people who thought cyberspace would facilitate utopian dreams of bodiless freedom online (that’s the EFF being clueless, by the way), but in fact the opposite is true: like CCTV, it just makes evidence gathering for everyone from employers to law enforcement that much easier.
And thing is, we’ve always accepted employers’ rights to exercise a degree of control over their employees, especially when it comes to protecting a given employer’s reputation or preserving harmony within the workplace; speech has always been constrained by the contract of employment, up to and including the Official Secrets Act. We’ve always accepted the right of advertisers to take their business elsewhere, as in the Alan Jones case. However, we’ve also forgotten how crushingly difficult it is to be nice all the time, to always be courteous, discreet, and polite. In that sense, manners do cost something: everyone, not just lawyers, now has to mind their mouths at just that point in history where an unminded mouth will leave a digital footprint for as long as we have the Internet. This is not to make excuses for Michael Brutsch or Matthew Woods or Alan Jones or Azhar Ahmed, all of whom deserve some form of censure, even if not one borne of law. Rather, it is to point out that even the politest and most orderly people slip, and the slips are now that much harder to manage.
Think, for example, of the painstaking work by disability and mental health advocates to assuage the stigmatisation of various conditions: now an employer can do ‘due diligence’ via google and Facebook and Twitter and remove from the hiring pool everyone who has made honest but unfortunate disclosures. Think, too, of the painstaking work done by feminists to ameliorate the social requirement that women always be ‘conciliatory’, or that men always be ‘stoical’: all of it undone when a woman is revealed to be aggressive, or a man emotive, while online.
Of course, minding one’s mouth is mostly all right for lawyers: we tend to be well paid and schooled in the practice of le mot juste. Expecting similar restraint from everyone else, without recompense, is probably unreasonable. Then there is the broader question of whether we wish to live in a society once again ordered by politeness codes. For those who decry the ‘political correctness’ directed at Andrew Bolt or Alan Jones or Catherine Deveney, may I suggest a six month course in Japanese or Latin? Or English in the time of Chaucer? There you will encounter entire languages built around hierarchy and courtesy, and–as one would expect–also larded with hypocrisy as people divided their public from their private lives with the legal and linguistic equivalent of the Berlin Wall.
The way we live now
We now live in a world where most everything we say is recorded somewhere, for everyone to see–including persons with an interest in it: employers, advertisers, law enforcement. We can use free speech arguments to defend ourselves from the third of those groups, but not the other two. Keeping a still tongue in one’s head is now necessary in ways it hasn’t been for a very long time. Teasing out the implications of that, then living with them with some sort of equanimity, may take a very long time indeed.