Free speech not guaranteed by online providers

Critics urge feds to intervene as users lack rights

By Anick Jesdanun, Associated Press

Sunday, July 6, 2008

Photos by Fred Ernst © AP

Photographer Maarten Dors shows his photo entitled "The Romanian Way" at his home in Enschede, Netherlands, on April 15. Yahoo had deleted the photo from its photo-sharing service, Flickr, on the grounds it violated an unwritten ban on depicting children smoking.

Maarten Dors browses through his pictures posted on Flickr. Parent company Yahoo apologized to Dors for deleting a photo.

Rant all you want in a public park. A police officer generally won't eject you for your remarks alone, however unpopular or provocative.

Say it on the Internet, and you'll find that free speech and other Constitutional rights are anything but guaranteed.

Companies in charge of seemingly public spaces online wipe out content that's controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China. They serve as prosecutor, judge and jury in handling disputes behind closed doors.

The governmental role that companies play online is taking on greater importance as their services - from online hangouts to virtual repositories of photos and video - become more central to public discourse around the world. It's a fallout of the Internet's market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms.

Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.'s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth.

Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that - far from promoting smoking - the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later.

"I never thought of it as a photo of a smoking kid," Dors said. "It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete."

There may be legitimate reasons to take action, such as security threats, copyright infringement and child pornography, but many cases aren't clear-cut, and balancing competing needs can get thorny.

"We often get caught in the middle between a rock and a hard place," said Christine Jones, general counsel with service provider GoDaddy.com Inc. "We're obviously sensitive to the freedoms we have, particularly in this country, to speak our mind, (yet) we want to be good corporate citizens and make the Internet a better and safer place."

In Dors' case, the law is fully with Yahoo. Its terms of service, similar to those of other service providers, gives Yahoo "sole discretion to pre-screen, refuse or remove any content." Service providers aren't required to police content, but they aren't prohibited from doing so.

While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities - ones where minors may be roaming.

Dors ultimately got his photo restored a second time, and Yahoo has apologized, acknowledging its community managers went too far.

Heather Champ, community director for Flickr, said the company crafts policies based on feedback from users and trains employees to weigh disputes fairly and consistently, though mistakes can happen.

"We're humans," she said. "We're pretty transparent when we make mistakes. We have a record of being good about stepping up and fessing up."

But that underscores another consequence of having online commons controlled by private corporations. Rules aren't always clear, enforcement is inconsistent and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider's discretion.

Users get caught in the crossfire as hundreds of individual service representatives apply their own interpretations of corporate policies, sometimes imposing personal agendas or misreading guidelines.

To wit: Verizon Wireless barred an abortion-rights group from obtaining a "short code" for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc.'s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints.

Some advocacy groups believe the federal government needs to guarantee open access to speech. Others believe companies shouldn't police content at all, and if they do, they should at least make clearer the rules and the mechanisms for appeal.

But Marjorie Heins, director of the Free Expression Policy Project, questions whether the private sector is equipped to handle such matters at all.

At least when a court order or other governmental action is involved, "there's more of a guarantee of due process protections," said Robin Gross, executive director of the civil-liberties group IP Justice.

• July 7, 2008

  4:40 a.m.

  Suggest removal

  LOUIE writes:

  Sound alot like John Temple's hired guns; they always shoot down free speech on this blog! All someone has to do is call it in and zip...it's gone!

• July 7, 2008

  4:43 a.m.

  Suggest removal

  LOUIE writes:

  Don't you love all the substitute symbols people use for spelling out profanity? Like we didn't understand the word. How foolish.

• July 7, 2008

  7:26 a.m.

  Suggest removal

  VVVV writes:

  The internet is private and should remain that way. You can't scream profanities in a church and not be thrown out. The only way to warrant free speech is if the government were to take over the internet, waste your tax dollars for a huge bureaucracy to manage it, and pay even more for the huge increase in frivolous lawsuits that would follow. If you want to be taxed back into the stone age, go ahead and demand free speech on the internet. I for one prefer to let the crazies pay for their own rants, and keep my own mouth shut (and keep as much of my tax dollars in my own wallet). Complaining to the execs seems to be working fine in borderline situations. And we have too many screwed up laws as it is designed to help the borderline that open gaping loopholes for the lunatic fringe to waste your tax dollars much more than they ever contribute.

• July 7, 2008

  8:39 a.m.

  Suggest removal

  mrfxx writes:

  It wouldn't be so annoying if the "scanner" for offensive terms were human instead of a very limited scope program. I was commenting on basically being conned and referred to folks as being "s u c k e r e d" - and guess what - that triggered the "watch your language" warning. Meanwhile, the other online paper has no censorship - or way to complain about offensive posts.

• July 7, 2008

  12:30 p.m.

  Suggest removal

  Logical writes:

  I agree with VVVV. I don't expect complete freedom to say whatever I want on a site someone else pays for. Whether on the Rocky's site, Flikr, or anywhere else, site managers have every right to remove comments in order to maintain their idea of decorum. Those that don't like being told to watch their language don't need to post there.

  If it is on my own site, I can say whatever I want. Those that want to rant without censorship can register their own domain, and build their own site. Then, they can say whatever they want, and allow whatever they want. Simple. Why do folks think they can say whatever they want on a site someone else is paying for? A Web presence is not free, in most cases. Someone has to pay for it, so they should be allowed to control content.