Wednesday, February 25, 2009


This post is based on an article I've been working on with one of my students. It's about cyber bullying, and the issue of gossip keeps coming up. It also comes up in the context of other online crimes like stalking and harassment.

Gossip comes up when we consider the propriety of using criminal law – crimes like stalking, harassment and defamation – to discourage people from posting certain types of information online. The constant theme in cyberbullying, stalking, harassment and online defamation is that someone (A) posts information or rumor or opinion about B and, in so doing, “harms” B.

The problem for law is the nature of the harm.
As I’ve explained elsewhere, criminal law evolved to deal with what I call hard harms: tangible injury to persons and property. Since they’re tangible, those harms tend to be objective in nature; that is, law can categorically assume that if A rapes B or hits B or kills B or burns down B’s house or steals B’s car, a certain quantum of physical harm – physical damage – was inflicted. That’s important, aside from anything else, because it means the harm is objective enough that we can define crimes clearly; so we make it a crime to cause the death of another human being or steal property or burn property, etc.

Law can confidently assume that statutes like these put people on notice as to what they are not supposed to do; when people are on notice of what they’re not supposed to do but go ahead and do what is forbidden, then it’s a pretty straightforward process to hold them liable for what they did. The prosecutor has to show they had the necessary evil mind (they knew what they were doing was wrong, they purposely did what they knew was wrong, they recklessly did something that was wrong, etc.) and that they actually inflicted the prohibited harm. The harms themselves are pretty generic; that is, causing the death of any human being inflicts the same harm, as far as law is concerned. (That’s why if A fires a gun intending to kill A but kills B instead, we can still prosecute him for murder; he caused the death of a human being . . . he got the wrong one, but he still caused the death of a human being and that is the harm murder encompasses.)

That brings us to soft harms: Unlike hard harms, which involve tangible injury to persons or property, soft harms are more difficult to categorize. Essentially, they involve the infliction of some type of injury to morality, to affectivity or to a systemic concern with the safety of individuals and/or the integrity of property. So crimes like stalking and harassment often target the infliction of emotional distress, and criminal defamation often targets causing damage to someone’s reputation and/or holding them up to ridicule.

When we move into soft harms things become more complicated. We’ve all said things that could harm others in more or less serious ways, never intending that they reach the person in question. They usually do not because social mores inhibit most of us from telling A what B said about him. The idea of prosecuting someone on the basis of such conduct seems absurd, but it has been (and is being) done.

The issue of soft harm arises because the presumptive confidentiality we assume in the real-world becomes problematic online, at least when the actor posts comments on a site that is at least potentially accessible to the target of the comments. When we post irritating or malicious gossip online we publish the comments to the world. If we post comments without regard to whether the person they concern is likely to see them, we do not engage in the premeditated, focused communications that have been (and are) a defining characteristic of crimes like stalking, harassment and defamation. If our comments reach the victim, they may inflict the types of harm prohibited by harassment and stalking statutes; the problem lies in our lack of an intention to stalk, harass and/or defame the victim. We may have just been venting about the victim or engaging in the kind of gossip that is routine – and definitely not criminal – in the real, physical world.

Stalking and harassment laws are not an appropriate way to deal with this kind of behavior because they were crafted to deal with a specific type of targeted, malicious communication. Harassment and stalking often involve bombarding the victim with what would constitute gossip if it were shared with persons other than the one it concerns. It is this premeditated, malicious targeting of the victim that distinguishes simple gossip (non-criminal gossip) from harassment or stalking. When it comes to gossip, ignorance may not be bliss, but it eliminates any need to use criminal liability to control what is being said about someone.

How should we handle situations in which this malicious targeting is absent but the online circulation of gossip still inflicts harm on the person it concerns? We're dealing with a new problem, one that could not have arisen prior to the Internet. Until Internet use became common, the publication of material (gossip, rumor, news, etc.) was controlled by mainstream media: corporations engaged in disseminating content via print, radio and television signals. The material mainstream media publishes is limited by two factors: The cost involved in publication by traditional means acts as a de facto content filter; publishing material about matters of general public interest is likely to be more profitable than publishing material that will interest only a few people. The other limiting factor is the possibility of being sued (for defamation, invasion of privacy, etc.); that possibility causes mainstream media companies to rely on a cadre of professional editors, reporters and other staff, whose collective purpose is to filter content and prevent the publication of actionable material.

The mainstream media therefore (i) publishes gossip about people whose lives are likely to be of general public interest (celebrities) but (ii) does not publish gossip about non-celebrities, i.e., those whose lives will almost certainly not be of interest to the general public. This meant that prior to the Internet, non-celebrities bore little, if any, risk of having gossip about themselves circulated to a wider audience. Gossip stayed where it had always been – within the localized group comprising the individual’s co-workers, acquaintances, friends and family.

The Internet changes that. Now we all face the prospect of experiencing what was once the sole province of Hollywood celebrities: We can have our own paparazzi, whether we like it or not. Unlike professional paparazzi (who are motivated by profit), our paparazzo (or paparazzi) may be motivated by jealousy, insecurity or boredom. And unlike those who have traditionally been the targets of paparazzi, we have done nothing to inject ourselves into the public arena. We expect celebrities to shrug off the more or less accurate but usually embarrassing gossip paparazzi generate about them; but those of us who are not celebrities are outraged when our own, free-lance paparazzi do something similar to us.

Should criminal stalking and harassment laws be expanded to encompass the online circulation of gossip about private citizens? Celebrities have on occasion sought to use stalking or harassment laws against their paparazzi, but those efforts have been predicated on the trespasses and assaults paparazzi often use to obtain photographs of celebrity targets. Since physical trespasses and encounters are not an aspect of the problem we are considering, these uses of stalking and harassment cannot provide guidance for dealing with the online gossip problem.

That seems to leave us with two alternatives: One is to expand current criminal stalking or harassment laws so they encompass the generalized publication of gossip that inflicts soft harm. The other is for us to accept our newfound, and perhaps unwelcome, status as a lower case public figure, i.e., as someone whose personality, appearance, activities and/or predilections can become grist for an amateur online paparazzo (or paparazzi).

While some may find the first alternative appealing, it would be unworkable in practice and is almost certainly unconstitutional. It would be unworkable because the criminal justice system would be inundated with requests for prosecutions, most of which would be denied due to a lack of resources; rejected requests might lead the original victim to retaliate in kind, which could lead to a consequent, also likely to be rejected request for prosecution by the perpetrator-become-victim.

While prosecutions might be brought in a few particularly egregious cases, they would probably do little to discourage the online gossip phenomenon. As to the constitutional issues, expanded stalking and harassment statutes criminalizing the circulation of simple gossip should violate the First Amendment because they would bar the publication of non-defamatory content and opinion; they would probably also be held void for vagueness due to the difficulty involved in articulating what was, and was not, permissible in online commentary about someone.

That leaves the second alternative, which is eminently feasible but more than a little unsatisfying. We would have to tolerate the aggravating attentions of those who choose to become our paparazzi (unless their conduct could be prosecuted under one of the theories we have yet to examine). We would have to accept the proposition that has been bandied about for more than decade: Cyberspace transforms everyone into a public figure; or, more accurately, cyberspace has the potential to transform everyone into a public figure. If some more or less deranged person decides to spread gossip about me online, I have to deal with it on my own; I can ignore it or respond in kind or, if the gossip is particularly annoying, try to have it taken off the site on which it is posted. Beyond that, there probably is nothing I can do (absent, again, the applicability of one of the theories we examine below).

While this alternative may seem unsettling and unsatisfying to us, that may not always be true. We find it unsatisfying because we are used to a world in which we have been able to ignore what is said about us, at least for the most part; I know, at some level, that my friends, colleagues and acquaintances gossip about me behind my back, but as long as I do not know what they say, I can ignore it. When what they say migrates online, it becomes difficult – if not impossible -- for me to ignore it. Since I am the product of a real-world culture which dictates that gossip is not to reach the person it concerns, I am likely to be outraged and want the perpetrators sanctioned, somehow. But that reaction may be an historical artifact, the product of a non-networked culture.

As social networking becomes more pervasive, we are likely to become more accustomed to – and more comfortable with – the fact that gossip has migrated online and can leak into wider circulation. If it simply leaks, and is not deliberately directed at the person it concerns, we may have to live with that. The pragmatic assumptions we tend to make about intentionality when gossip reaches its target in the real-world will no longer be valid, which may make the notion of holding the leaker criminally liable for what he or she has done hopelessly problematic.

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