March 18, 2013
Over the past years, we have seen an all-out assault on the messenger immunity, forcing liability onto commercial distribution services for merely carrying a message. The net effect of this is a drastic and catastrophic abolition of the freedom of speech in the Internet.
Barely a week passes without yet another website being taken down because somebody objected to its existence. This would have been conceptually unthinkable two decades ago, but the copyright monopoly has encroached on civil liberties to a degree many haven’t realized.
Let’s return to the idea of the analog letter. It embodies much of what we cherish about freedoms of speech and expression. A key aspect of the letter is the concept of the messenger immunity – the idea that the mailman is never responsible for the contents of a carried message.
To illustrate how throughly fundamental this principle is, consider that the largest distributor of narcotics in pretty much every country is that country’s postal services. Yet, nobody would dream of holding the postal services as such responsible for the fact that some people use it to transport contraband – the responsibility for this rests solely with those who send narcotics through the mail, not with the mail system itself.
If a random director of a country’s postal service were called on this fact in a discussion panel, they would respond, “Well, that is indeed a problem. But it’s not our problem, nor should it be.” And they would be right.
For some reason, this fundamental principle of law doesn’t apply online, which is yet another sign the policymakers don’t seem to believe the Internet is for real, a lack of understanding that the net is actually a part of the real world.
This is a result of skilled lobbying from copyright monopoly extremists who have been talking to policymakers – policymakers who are at such a level of digital literacy that they get their e-mails printed for them by secretaries. (I wish I was making this up, but I’m not.) The result is a mishmash of laws with so-called Safe Harbors – implying that they would protect the messenger immunity – but where these laws are actually the exact opposite of Safe Harbors, as they introduce conditions for the immunity.
More specifically, the messenger is only immune as long as nobody has objected to their carrying the message. Most infamously, this is the case in the United States’ disastrous DMCA law, a mechanism that has gradually and partially crept into EU courts as well through a number of precedents.
When so-called Safe Harbors are conditional, and you risk liability for not killing the message, the correct business decision is almost always to drop the message and not risk liability – it is not the messenger’s responsibility to safeguard freedom of speech as such: it is their responsibility to run a business, and this is as it should be.
This is part of a deliberate conflation between business interests and civil liberties, and gradually letting business interests supersede civil liberties just because they are exercised online. That is not acceptable. Freedoms of speech were never safeguarded as a business interest. They were always safeguarded as an overriding political and civil liberties interest; it was never a particular entrepreneur’s responsibility to shoulder the responsibility of protecting freedom of speech for an entire nation.
Unfortunately, this has left us without anybody who takes responsibility for freedom of speech. The feeling that this was somebody’s intended result subtly creeps under your skin.
The very purpose of freedom of speech is to give everybody the ability to say things that aren’t popular. You never needed a constitutional protection to say that unicorns, kittens, and rainbows are pretty.
Freedom of speech is the freedom to state anything for any reason with the intent of conveying a message, either to a specific recipient or to the public at large. Successful political speech (which doesn’t have to include spoken words just to be called “speech”) more often than not points at somebody else’s expression and puts it in a new light.
At this point, copyright monopoly extremists are never late to claim that freedom of expression only is the freedom to state your own expressions, not a freedom to broadcast other people’s expressions. To put it in technical terms, this argument is utter bullshit.
When I sing “Happy Birthday” to somebody, it is trivial to observe that I do so to express a message of my own at the recipient, despite the fact that the song is under copyright monopoly, which is what is implied by the garbage of “somebody else’s expression”.
We are currently without a functioning legal protection of freedom of speech online, as Internet Service Providers get threatened the instant something is communicated that somebody else doesn’t like. If this had been the case when postal services were created, we would not have postal services today – nor the telephone, nor the Internet.
Messenger immunity is fundamental, and we need to fix this. It must be unconditional.