Media Convergence, Audience Divergence – Some of my reflections on the book Convergence Culture: Where Old and New Media Collide by Henry Jenkins (2006)
Jing Ke
Oct, 2010
Course Title: Knowledge Management
Content Summary of the Book
In short, the book Convergence Culture tackles with cultural changes and social dynamics emerged from the use of new media. As the author delineates in the introduction, this book is about the relationship between three concepts – media convergence, participatory culture, and collective intelligence (p. 2). The word “convergence” in the context of this book means: 1). the flow of content across multiple media platforms; 2). the cooperation between multiple media industries; and 3). the migratory behaviour of media audiences today. According to Jenkins, in the process of convergence, the circulation of media content across different media systems, even different nations and social systems, depends heavily on consumers’ active participation.
As Jenkins points out, the convergence also represents a cultural shift as consumers are encouraged to seek out new information and make connections among dispersed media content. In contrast to traditional media ecosystem where the producer and the consumer are playing separate roles and staying on different levels in information communication process, the relationship between media producers and media consumers is changing dramatically in the transformation of digitization: though in varied degrees, they both become interactive participants in media activities, alone with the phenomenon is the fluid power dynamics – this backbones what the author called participatory culture.
One outcome of this participatory media behaviour is the collective consumption of media products, and the emergence of collective intelligence, which is derived from the media consumers’ creative and collaborative interactions with the media and can be seen as an alternative source of media power. With this being said, Jenkins explores in this book how collective meaning-making within popular culture is starting to “change the way religion, education, law, politics, advertising, and even military operate” (p. 4) in contemporary world with a couple of cases in each chapter.
This book also discusses the relationship between technology and human mind in terms of media convergence. Jenkins holds that although technological innovations in the area of information communication have huge implications in our social structure and social behaviour and can always bring together multiple media functions in one device, the main boost of convergence, however, largely lies in the human mind, more specifically, in the brains of individual consumers and their social interactions with others. In other words, Jenkins in this book highlights the cultural and social meanings of convergence rather than simply physical means of media and information communication.
Abstract of each chapter:
Chapter 1 of this book examines the phenomenon of Survivor spoilers in the consumption activities of reality television. This group of consumers is read as a vivid example of a knowledge community whose members work together to forge new knowledge and thus bring about collective intelligence. As a representative of contemporary media consumption, their knowledge becomes an increasingly noticeable power in the age of media convergence.
Chapter 2 focuses on another well-known reality television in the US: American Idol and explores how reality television is being shaped by “affective economics”, which encourages companies to blur the line between entertainment content and brand messages and invite the audience into the brand community. The ideal consumers are supposed to be active, emotionally engaged, and socially networked, thus they can carry out more active consumption as well as protect the brand integrity.
Chapter 3 examines The Matrix franchise as an example of transmedia storytelling emerged in response to media convergence. It concludes that relying on the active participation of knowledge communities, transmedia storytelling has become an indispensible motivator in the commercial success of fictional movies and similar media product.
Chapter 4 is about fan culture, which I personally understand as a subfield of participatory culture. It deals with Star War fan filmmakers and gamers and explains how they satisfy their own fantasies and desires by actively reshaping the scenarios and plots of the films.
Chapter 5 goes further into the fan culture and probes into the politics of participation in the realm of participatory culture. It represents the struggles between fan writing and media producers over the intellectual property issue and the struggles between conservative and liberal Christians over their attitudes on media convergence, globalization, and traditional authority as well as the influences on children’s education. In general, the author holds a positive viewpoint on those issues and stand on the side of participation.
Chapter 6 turns from popular culture to public culture and argues that the lines between political culture and popular culture have blurred in new media era. Giving the example of 2004 American presidential campaign, Jenkins suggests that since citizens today are more engaged in popular culture than political discourse, it is popular culture that should take the responsibility to educate the public about political importance and to make democracy more participatory. On the other hand, with the participation of citizens in the campaign activities, the candidates and parties are losing some control over this political process.
In conclusion, this is a book about convergence, collective intelligence, and participation in new media era. Jenkins tries to give us a bird’s-eye view on how convergence and participation is changing the culture, politics and economy of our society. This process can be summarized in his own words, “convergence culture represents a shift in the ways we think about our relations to media, and we are making that shift first through our relations with popular culture, but the skills we acquired through play may have implications for how we learn, work, participate in the political process, and connect with other people in the world.” (p. 23)
Personal Commentary
Written in 2006, Jenkins’s book was, to a large extent, prospective. His arguments and observations on convergence media and participatory culture turned out to be evidentially appropriate when we examine the societies in the context of developed countries today. However, we have to understand that one can hardly give an all-around portrait on how media convergence changes our society in the era of digital revolution in one single book, and human culture is something that has the capacity to introspect, evolve, and regenerate from time to time. With that being said, I personally hold the viewpoint that Jenkins in this book emphasized too much on the convergence side of media and society but overlooked the divergence side of this issue.
Doubtlessly, convergence is the trend of today’s world: we are talking about globalization and integration in every context of human society; we are building up organizations like EU and APEC from continent to continent; and we are witnessing a growing number of tycoons gaining significant control over the media from which we receive information. The tide of convergence has greatly influenced and reshaped our society in terms of media industry, social institution, economy, culture, communication technology and so forth, pushing them going on the track of convergence as well.
However, here I’d like to turn to the other side and question what the driving forces of this media convergence are. Jenkins in this book pointed out clearly that it is the innovation of technology (i.e. digitalization and Internet) and the human nature (we use media as natural choices) that mainly motivated the trend of convergence. Jenkins was right, definitely, but I’d like to highlight something he also discussed in the book: the divergence of audience, which is also, from my perspective, a major motivation which shifts the model of media communication from mass communication to segmented communication and finally personalized communication in the past decades.
In this book, Jenkins had actually mentioned various examples on audience divergence but didn’t go much further into this discourse. To name a few, the Survivor spoilers and the grassroots fan communities, which are both small groups of audience consuming and producing media product according to their own taste and favour. These groups are just a small part of the big picture of audience segmentation in digitalized era, and in my opinion, the convergence of media platforms, technologies and even the whole media industries is an essential way to maintain audience’s attention in the situation that they have in fact been largely diversified. By means of media convergence, today’s audiences, especially young audiences, are able to keep participating in media consumption via multiple platforms and channels, and in return, they contribute their knowledge and intelligence into the media content production, making the participatory culture possible.
As it’s been illustrated in both the cases of Survivor and American Idol, in today’s media context, relations between media producers and consumers are breaking down as consumers are seeking to participate in the generating of media product – this reminds me the term “prosumer”, which emerged in early 1980s and means the fusion of producer and consumer (or the professional and the consumer). We are living in a commercialized era - the media system is typically commercialized. Thus in my opinion, the surge of “prosumer” in the field of media practice is also largely motivated by the phenomenon of audience divergence, more accurately, by media group’s desire to maximize profit through the media product, by-product and advertising industry. Since in the context of digitization, the only way for media groups to survive and keep a profitable production is to fulfill the highly diversified audience’s taste, to which the best mean is to allow and encourage the audience to join in the production chain and realize personalized product.
Besides exploring the transition in consumer’s behaviour in media convergence and the implications of such transition, in this book Jenkins also points out the power shift yielded by the media convergence and cultural shift, which in my opinion concords with the postmodern way of thinking, say, typically, with Foucault’s statement on power/knowledge. The wide spread of computing technology and digitalized information communication witnessed the collapse of a centralized power and hegemony in our society. With this power collapse, mass production in society breaks into pieces, citizens gain more rights to speak in the political process, and segmented audiences all over the world are searching media product according to their own favour and in the way they feel most comfortable with.
To sum up, in my opinion, we can divide the outcome of digitization into two sides: the convergence side and the divergence side. Convergence is about ICTs, media industries, media product and other services they provide while divergence is about the audience, their needs and tastes, and the media content they are consuming and producing. They are like two sides of a coin; they co-exist and interact with each other in the context of digitization.
Besides that, Jenkins raised a question in his book which I feel worth our noticing: he questioned whether the changes brought about by convergence opened new opportunities for expression or expanded the power of big media. This question requires careful consideration and is kind of alarming. My answer is, though power shifts drastically, the changes are actually expanding the power of big media but this expansion is disguised under the image of new opportunities for expression and decentralization of media power. – Anyway, time will tell to what direction we are going and whether it is a blessing or a curse.
Oct 24, 2010
Aug 12, 2010
Legal opinion of a fictional scenario
Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media
[Review of the facts and arguments omitted]
This case is about copyright infringement on a video sharing website which has a world-wide influence. Canada’s Copyright Act has clearly affirmed that “copyright” covers “the sole right […] to communicate the work to the public by telecommunication […] and to authorize any such acts.” The term “telecommunication” is defined as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.” It is undeniably the fact that, during 2005 to 2007, before YouTube and Google implemented a filtering system and other content protection measures, YouTube users commonly uploaded unauthorized clips of TV shows and movies to the website. The uploading of unauthorized materials by YouTube users is a communication falls within the declaration of Copyright Act, and as the copyright owner of those clips, BEC’s right and interest has been infringed. The question being discussed in this legal opinion is: Should Google and its YouTube property be responsible and to what extent they are responsible for the act of copyright infringement in this case? Based on the arguments uttered by BEC and Google, there are two sub-questions to be interpreted:
1. Does Google or YouTube has the validity of being exempted from the Copyright Act?
2. Is YouTube “looking the other way” when clips from BEC’s movie and TV productions were once plentiful on YouTube website?
Based on the facts of this case and the existing legal grounds, I personally hold the opinion that Google and its YouTube property is responsible for the act of copyright infringement on YouTube website in this case. As a major video-sharing website, YouTube functions more than an innocent third-party intermediary and thus cannot be protected from being held responsible for copyright infringement committed by its users. As to the second sub-question, it is impractical to have a clear-cut evaluation over the subjective inclinations of YouTube when infringing materials burst. However, it is not the aim of this case to determine whether or not YouTube was “looking the other way” when infringement happened, and the answer of this question does not have a direct affect on the judgment of this case.
There is no doubt that the expansion of Internet in contemporary society has created serious obstacles to the protection of copyright, since current communication technology (i.e. Internet based file sharing such as P2P technology) makes it possible to exchange and transfer copyright materials worldwide among large number of people even in a few seconds. Facing the situation, current legal system is struggling to follow the pace of technology. The Theberge case [2002] and CCH v. Law Society case [2004] clearly manifest that the Supreme Court of Canada has described the Copyright Act as providing “a balance between promoting the public interest in the encouragement and dissemination of works of art and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the copyright owner from appropriating whatever benefits may be generated)”. As Sharlow J.A. writes for the SOCAN v. CAIP case [2004]:
The capacity of the Internet to disseminate works of the art and intellect is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.
Section 2.4(1)(b) of the Copyright Act provides that participants in a telecommunication who only provide “the means of telecommunication necessary” are deemed not to be communicators. The “means” include all software connection equipment, connectivity services, hosting and other facilities and service without which communication could not occur. Such distinction between content supplier or obtainer of the Internet and the infrastructure of the Internet reveals the Parliament’s encouragement of the use of new communication technology in balance of the protection over copyright owners. In SOCAN v. CAIP case, Internet service providers such as Bell Canada are exempted from the copyright liability because they limit themselves to a conduit and part of the content neutral infrastructure of the Internet, thus they fall within the protection of Section 2.4(1)(b) of the Copyright Act.
However, facts are different in this case. Google, more specifically, its YouTube website, is a video-sharing website based on Adobe Flash Video technology and on which users can upload, share, and view videos worldwide. Though it provides a “platform” to share all kinds of videos, the role it plays in the telecommunication activity is different from that of the ISPs such as Bell Canada. From my perspective, YouTube functions like an entity of new media on the Internet more than merely a conduit or infrastructure. Here a simple example, suppose a school boy has used Bell Canada’s service to connect to the YouTube host server and successfully watched unauthorized three seasons of The Big Bang Theory on YouTube website, it is obviously improper to equalize the role Bell Canada and YouTube play here. Bell Canada indeed provides the physical means of communication, while YouTube is providing the videos directly and obtains profit from such activity as a commercial website.
Furthermore, as an influential medium based on Internet communication, YouTube has a responsibility to support the legal and moral system of our society and to prevent content like violence, racism, terrorism, genocide and the like as well as piracy content exist on the website. In this case, YouTube, together with the video uploader, can be viewed as a “joint content provider”. In other words, both YouTube and its users who upload the copyright infringing videos are participants in the infringement act, their responsibility in this process cannot be separated, and YouTube should be accused because it provides the platform for the infringement act and appropriates large benefits from the pirate clips.
Some would argue that YouTube can also be exempted from infringement if it proves the service it provides falls within the fair dealing defence. Section 29 of the Copyright Act provides that “Fair dealing for the purpose of research or private study does not infringe copyright.” However, facts in this case do not support the defence of fair dealing exception either. The clips of TV shows and movies are cultural product and mainly serve for the purpose of entertainment, also, BEC produce and market them in pursuit of commercial profitability. The unauthorized clips existed on YouTube website also brought YouTube huge benefits from advertising and so forth. Lastly, the dissemination of videos on YouTube website is a communication to the public. Accordingly, YouTube cannot prove its dealings with these clips are fair under s.29 of the Copyright Act.
Another argument between BEC and Google is whether or not YouTube was “looking the other way” when infringing materials were once plentiful on the website. As I stated, it is difficult to have a clear-cut evaluation over the subjective inclinations of YouTube in this case. The willful blindness of YouTube seems a reasonable deduction since every commercial organization inclines to maximize its profit, but the argument from Google is also powerful and convincing. As a matter of fact, base on present state of technology and the huge number of videos uploaded to YouTube every day, it is impractical to filter and supervise all the video content and eliminate the existence of copyright infringing materials. However, as a principle of law, a reasonable explanation of wrong-doing does not equal to an exception from the punishment. In this case, YouTube participates in the violation of Copyright Act and BEC has suffered from the economic loss, it is not determinate for the result of the case to figure out if YouTube has the intention on the infringement act or not.
In addition, the judgment of this case is not only about copyright infringement of one website, it also has some implications on the issue of proper behavior and business ethics of today’s new media. Personally speaking, our present legal system has already compromised and given enough, if not sufficient, space to the growth and uses of new technology, such as the Internet. However, there has to be a legal and moral bottom line lies in the uses. If in this case YouTube is exempted from copyright liability in its video-sharing services, it is reasonably predictable that numerous websites which provide similar services will take advantage of this judgment and expand their copyright infringing services. This goes against the “balance” Copyright Act strikes to keep and also largely disturbs existing market order. The social influence and future implications have to be considered.
Conclusively, given the facts, the legal grounds and the possible social influences, I hold the opinion that Google and its YouTube property is a participant in the copyright infringement alleged by BEC. The dealings of YouTube in this case neither falls within the protection of Section 2.4(1)(b) nor falls within Section 29 of the Copyright Act of Canada and the intention of YouTube regarding whether or not it allows or encourages the video publishing is unnecessary to identify. BEC is going to win the case.
August, 2010
Course Title: Law and the Challenges of New Media
[Review of the facts and arguments omitted]
This case is about copyright infringement on a video sharing website which has a world-wide influence. Canada’s Copyright Act has clearly affirmed that “copyright” covers “the sole right […] to communicate the work to the public by telecommunication […] and to authorize any such acts.” The term “telecommunication” is defined as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.” It is undeniably the fact that, during 2005 to 2007, before YouTube and Google implemented a filtering system and other content protection measures, YouTube users commonly uploaded unauthorized clips of TV shows and movies to the website. The uploading of unauthorized materials by YouTube users is a communication falls within the declaration of Copyright Act, and as the copyright owner of those clips, BEC’s right and interest has been infringed. The question being discussed in this legal opinion is: Should Google and its YouTube property be responsible and to what extent they are responsible for the act of copyright infringement in this case? Based on the arguments uttered by BEC and Google, there are two sub-questions to be interpreted:
1. Does Google or YouTube has the validity of being exempted from the Copyright Act?
2. Is YouTube “looking the other way” when clips from BEC’s movie and TV productions were once plentiful on YouTube website?
Based on the facts of this case and the existing legal grounds, I personally hold the opinion that Google and its YouTube property is responsible for the act of copyright infringement on YouTube website in this case. As a major video-sharing website, YouTube functions more than an innocent third-party intermediary and thus cannot be protected from being held responsible for copyright infringement committed by its users. As to the second sub-question, it is impractical to have a clear-cut evaluation over the subjective inclinations of YouTube when infringing materials burst. However, it is not the aim of this case to determine whether or not YouTube was “looking the other way” when infringement happened, and the answer of this question does not have a direct affect on the judgment of this case.
There is no doubt that the expansion of Internet in contemporary society has created serious obstacles to the protection of copyright, since current communication technology (i.e. Internet based file sharing such as P2P technology) makes it possible to exchange and transfer copyright materials worldwide among large number of people even in a few seconds. Facing the situation, current legal system is struggling to follow the pace of technology. The Theberge case [2002] and CCH v. Law Society case [2004] clearly manifest that the Supreme Court of Canada has described the Copyright Act as providing “a balance between promoting the public interest in the encouragement and dissemination of works of art and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the copyright owner from appropriating whatever benefits may be generated)”. As Sharlow J.A. writes for the SOCAN v. CAIP case [2004]:
The capacity of the Internet to disseminate works of the art and intellect is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.
Section 2.4(1)(b) of the Copyright Act provides that participants in a telecommunication who only provide “the means of telecommunication necessary” are deemed not to be communicators. The “means” include all software connection equipment, connectivity services, hosting and other facilities and service without which communication could not occur. Such distinction between content supplier or obtainer of the Internet and the infrastructure of the Internet reveals the Parliament’s encouragement of the use of new communication technology in balance of the protection over copyright owners. In SOCAN v. CAIP case, Internet service providers such as Bell Canada are exempted from the copyright liability because they limit themselves to a conduit and part of the content neutral infrastructure of the Internet, thus they fall within the protection of Section 2.4(1)(b) of the Copyright Act.
However, facts are different in this case. Google, more specifically, its YouTube website, is a video-sharing website based on Adobe Flash Video technology and on which users can upload, share, and view videos worldwide. Though it provides a “platform” to share all kinds of videos, the role it plays in the telecommunication activity is different from that of the ISPs such as Bell Canada. From my perspective, YouTube functions like an entity of new media on the Internet more than merely a conduit or infrastructure. Here a simple example, suppose a school boy has used Bell Canada’s service to connect to the YouTube host server and successfully watched unauthorized three seasons of The Big Bang Theory on YouTube website, it is obviously improper to equalize the role Bell Canada and YouTube play here. Bell Canada indeed provides the physical means of communication, while YouTube is providing the videos directly and obtains profit from such activity as a commercial website.
Furthermore, as an influential medium based on Internet communication, YouTube has a responsibility to support the legal and moral system of our society and to prevent content like violence, racism, terrorism, genocide and the like as well as piracy content exist on the website. In this case, YouTube, together with the video uploader, can be viewed as a “joint content provider”. In other words, both YouTube and its users who upload the copyright infringing videos are participants in the infringement act, their responsibility in this process cannot be separated, and YouTube should be accused because it provides the platform for the infringement act and appropriates large benefits from the pirate clips.
Some would argue that YouTube can also be exempted from infringement if it proves the service it provides falls within the fair dealing defence. Section 29 of the Copyright Act provides that “Fair dealing for the purpose of research or private study does not infringe copyright.” However, facts in this case do not support the defence of fair dealing exception either. The clips of TV shows and movies are cultural product and mainly serve for the purpose of entertainment, also, BEC produce and market them in pursuit of commercial profitability. The unauthorized clips existed on YouTube website also brought YouTube huge benefits from advertising and so forth. Lastly, the dissemination of videos on YouTube website is a communication to the public. Accordingly, YouTube cannot prove its dealings with these clips are fair under s.29 of the Copyright Act.
Another argument between BEC and Google is whether or not YouTube was “looking the other way” when infringing materials were once plentiful on the website. As I stated, it is difficult to have a clear-cut evaluation over the subjective inclinations of YouTube in this case. The willful blindness of YouTube seems a reasonable deduction since every commercial organization inclines to maximize its profit, but the argument from Google is also powerful and convincing. As a matter of fact, base on present state of technology and the huge number of videos uploaded to YouTube every day, it is impractical to filter and supervise all the video content and eliminate the existence of copyright infringing materials. However, as a principle of law, a reasonable explanation of wrong-doing does not equal to an exception from the punishment. In this case, YouTube participates in the violation of Copyright Act and BEC has suffered from the economic loss, it is not determinate for the result of the case to figure out if YouTube has the intention on the infringement act or not.
In addition, the judgment of this case is not only about copyright infringement of one website, it also has some implications on the issue of proper behavior and business ethics of today’s new media. Personally speaking, our present legal system has already compromised and given enough, if not sufficient, space to the growth and uses of new technology, such as the Internet. However, there has to be a legal and moral bottom line lies in the uses. If in this case YouTube is exempted from copyright liability in its video-sharing services, it is reasonably predictable that numerous websites which provide similar services will take advantage of this judgment and expand their copyright infringing services. This goes against the “balance” Copyright Act strikes to keep and also largely disturbs existing market order. The social influence and future implications have to be considered.
Conclusively, given the facts, the legal grounds and the possible social influences, I hold the opinion that Google and its YouTube property is a participant in the copyright infringement alleged by BEC. The dealings of YouTube in this case neither falls within the protection of Section 2.4(1)(b) nor falls within Section 29 of the Copyright Act of Canada and the intention of YouTube regarding whether or not it allows or encourages the video publishing is unnecessary to identify. BEC is going to win the case.
Aug 5, 2010
Reputation, Defamation and New Media
Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media
The question discussed in this essay is the challenges to today’s legal system derived from the uses of new media with regard to the issue of “reputation”. New media, in contrast to the traditional media, in this essay refers to the forms of electronic communication based on the use of computer technology, most typically the Internet. Doubtlessly, the rise of new media and digital communication technologies in the past decades has brought a wide range of challenges to modern society, since the online information publication could be fast, anonymous, global and even uncontrollable. As a matter of fact, the surge of new media, such as the Internet, has become a huge potential threat to a person’s reputation in contemporary society.
The definition of Reputation (Merriam-Webster Dictionary) is the overall quality or character as seen or judged by people in general; or a place in public esteems or regard (good name). On the other hand, Defamation is communication about a person that tends to hurt the person's reputation. In today’s new media era, a person’s online reputation is highly connected with and has large influence on the person’s reputation in real world. As Cory J. asserted in Hill v. Scientology case, the reputation of an individual (an organization as well) should to be cherished above all in a democratic society. Firstly, a good reputation is closely related to the innate worthiness and dignity of the individual. Secondly, reputation is the fundamental foundation on which people are able to interact with each other in social environment. Thirdly, it serves the important purpose of fostering a person’s self-image and sense of self-worth. Finally, it is intimately related to a person’s right of privacy. For these reasons, a person’s reputation must be protected by law, i.e. the common law of defamation.
On the other hand, when we talk about reputation and the challenges brought by new media, we should not ignore what stands on the other side of the issue: the freedom of expression. Among all the cases we read, the Hill v. Church of Scientology of Toronto Case [1995], the Newman et al. v. Halstend et al. Case [2006] and the Crookes v. Wikimedia Foundation Inc. Case [2008] clearly manifest how the whole system of common law aim to strike an appropriate balance between the twin values of reputation and freedom of expression, and how difficult it is to reach a convincing judgment over those issues.
The right of free speech, in other words, the freedom to express ideas and criticize the operation of institution and the conduct of government, is indubitably the cornerstone of a democratic society. However, no freedom is absolute and the freedom a person acquires on expression is also a “freedom governed by law”. The importance of free speech should never be over-emphasized, especially in cyberspace activities. As it is revealed in the cases, with the widely use of contemporary new media technologies, acts like defamation, libel and false allegation can quickly and completely destroy a person’s reputation, both online and in real world, thus such act should be regarded as a serious offence. Besides that, on a broader scope, the issue of reputation is concerned in any lawsuit since the reputation of everyone involved in the case is at stake.
The Crookes v. Wikimedia case is a good example of how the expansion of Internet in society brings unexpected questions to our legal system regarding reputation and defamation, i.e. is it an act of defamation when a website article includes a hyperlink to some defamatory websites. The judgment of such cases indicates a high consideration of the intentions of the article publisher, and whether there is a “publication” of the defamatory words. Based on my understanding, the act of publication can be examined in a rather objective manner while the intention of the publisher is a more subjective issue. In many cases, some extreme, biased or inappropriate expressions in cyberspace could be acceptable and allowed in order to protect freedom of expression and realize public interest, however, such expression may only be one step away to become libel, malice and other illegal act. – In other words, the difficulty and vagueness in keeping the balance between reputation and freedom of expression in today’s legal system is the main challenge brought by new media. As a matter of fact, there is a large “grey area” lies in the protection of these two fundamental human rights, and one can hardly draw a clear line in between.
The challenge of a person’s reputation in today’s web2.0 or even web3.0 area raises questions like the management and regulation of blogs, online chat rooms, bulletin boards and other public space for free expression, which is a challenge faced by the legal system globally. Take China’s “online mob” phenomenon for example, which refers to when some Internet users publish an individual or organization’s scandals (i.e. a husband having an affair with someone else, or some companies doing backstage deals in the market) on the Internet, hundreds of thousands of anonymous Internet users start to join in the publication and “attack” the person involved. They simply use their keyboards and mouse as weapons and in most of the time, the online mob can successfully find out very detailed personal information of the ones involved in the scandals (i.e. name, job, address, phone number, date of birth, family and even pictures). Plus, they also publish numerous threatening and humiliating words to the individual. As a result, the person being attacked turned out to be hurt both mentally and physically, some of them move to another city or even commit suicide under huge pressure.
Obviously, the online mob phenomenon in China has emerged as a growingly strong power in society and has large influence on people’s real life. As a kind of dangerous crowd behavior, it indeed leads to an invisible but alarming violence. Though government starts to pay more attention to online expression regulation, it seems impossible to curb the emergence of such activity. From my perspective, it is unquestionable that Internet should be free and the online freedom of expression should be protected. Such is especially important for a rapidly transforming country like China, and it will definitely help to build a more open, fair and democratic society. However, all these online public space: blogs, chat rooms, bulletin boards and so forth are just a platform for information communication based on new technologies, not a court. Though netizens have the right to express their ideas and opinions, they should not go across the line. Furthermore, numerous historical and current events have proved that the moral standard of the public (the Internet users in this case) is not always trustworthy, and crowd behavior in most of the time turned out to be irrational activities with miserable endings.
From my perspective, the protection of reputation in new media era is both a legal and moral issue. In many cases, defamation exists, damages are made, but no one could be identified to take responsibility since the online identity is fake and anonymous. Policies and laws should be further developed to have a better protection over every social member’s privacy and other interests. However, when present state of technology and legal system cannot promise a whole protection, we have to go to morality and rise the moral standard of Internet users by means of education, mass media, community and so forth. The guideline is the minority who are hurting others should be prevented but the majority’s freedom of expression should not be disturbed.
To sum up, compared with traditional media, new media such as the Internet provides a more rapid, interactive and unrestricted measure in communicating all kinds of information nation-wide and internationally. It is a technology we should take advantage of, but also necessitates a rigorous and systematic regulation over its uses. Law and legislation always develop with the pace of the times and they exist as a measure to balance all kinds of power and interest in society, including personal, public and national. The widely use of new media today questions how to fulfill the vacuum in legal system concerning the issue of reputation and defamation, and the ever-changing legislative and juridical framework of contemporary society is again in a transition. It reveals the development of our society and the development of human civilization; it also indicates the concerns and protection of human rights. The final goal of such transition is to enable all users of the new media to enjoy their own rights and freedom in the cyberspace while guarantee their uses do not infringe others’ rights and freedom, which is also the spirit of a civil society.
August, 2010
Course Title: Law and the Challenges of New Media
The question discussed in this essay is the challenges to today’s legal system derived from the uses of new media with regard to the issue of “reputation”. New media, in contrast to the traditional media, in this essay refers to the forms of electronic communication based on the use of computer technology, most typically the Internet. Doubtlessly, the rise of new media and digital communication technologies in the past decades has brought a wide range of challenges to modern society, since the online information publication could be fast, anonymous, global and even uncontrollable. As a matter of fact, the surge of new media, such as the Internet, has become a huge potential threat to a person’s reputation in contemporary society.
The definition of Reputation (Merriam-Webster Dictionary) is the overall quality or character as seen or judged by people in general; or a place in public esteems or regard (good name). On the other hand, Defamation is communication about a person that tends to hurt the person's reputation. In today’s new media era, a person’s online reputation is highly connected with and has large influence on the person’s reputation in real world. As Cory J. asserted in Hill v. Scientology case, the reputation of an individual (an organization as well) should to be cherished above all in a democratic society. Firstly, a good reputation is closely related to the innate worthiness and dignity of the individual. Secondly, reputation is the fundamental foundation on which people are able to interact with each other in social environment. Thirdly, it serves the important purpose of fostering a person’s self-image and sense of self-worth. Finally, it is intimately related to a person’s right of privacy. For these reasons, a person’s reputation must be protected by law, i.e. the common law of defamation.
On the other hand, when we talk about reputation and the challenges brought by new media, we should not ignore what stands on the other side of the issue: the freedom of expression. Among all the cases we read, the Hill v. Church of Scientology of Toronto Case [1995], the Newman et al. v. Halstend et al. Case [2006] and the Crookes v. Wikimedia Foundation Inc. Case [2008] clearly manifest how the whole system of common law aim to strike an appropriate balance between the twin values of reputation and freedom of expression, and how difficult it is to reach a convincing judgment over those issues.
The right of free speech, in other words, the freedom to express ideas and criticize the operation of institution and the conduct of government, is indubitably the cornerstone of a democratic society. However, no freedom is absolute and the freedom a person acquires on expression is also a “freedom governed by law”. The importance of free speech should never be over-emphasized, especially in cyberspace activities. As it is revealed in the cases, with the widely use of contemporary new media technologies, acts like defamation, libel and false allegation can quickly and completely destroy a person’s reputation, both online and in real world, thus such act should be regarded as a serious offence. Besides that, on a broader scope, the issue of reputation is concerned in any lawsuit since the reputation of everyone involved in the case is at stake.
The Crookes v. Wikimedia case is a good example of how the expansion of Internet in society brings unexpected questions to our legal system regarding reputation and defamation, i.e. is it an act of defamation when a website article includes a hyperlink to some defamatory websites. The judgment of such cases indicates a high consideration of the intentions of the article publisher, and whether there is a “publication” of the defamatory words. Based on my understanding, the act of publication can be examined in a rather objective manner while the intention of the publisher is a more subjective issue. In many cases, some extreme, biased or inappropriate expressions in cyberspace could be acceptable and allowed in order to protect freedom of expression and realize public interest, however, such expression may only be one step away to become libel, malice and other illegal act. – In other words, the difficulty and vagueness in keeping the balance between reputation and freedom of expression in today’s legal system is the main challenge brought by new media. As a matter of fact, there is a large “grey area” lies in the protection of these two fundamental human rights, and one can hardly draw a clear line in between.
The challenge of a person’s reputation in today’s web2.0 or even web3.0 area raises questions like the management and regulation of blogs, online chat rooms, bulletin boards and other public space for free expression, which is a challenge faced by the legal system globally. Take China’s “online mob” phenomenon for example, which refers to when some Internet users publish an individual or organization’s scandals (i.e. a husband having an affair with someone else, or some companies doing backstage deals in the market) on the Internet, hundreds of thousands of anonymous Internet users start to join in the publication and “attack” the person involved. They simply use their keyboards and mouse as weapons and in most of the time, the online mob can successfully find out very detailed personal information of the ones involved in the scandals (i.e. name, job, address, phone number, date of birth, family and even pictures). Plus, they also publish numerous threatening and humiliating words to the individual. As a result, the person being attacked turned out to be hurt both mentally and physically, some of them move to another city or even commit suicide under huge pressure.
Obviously, the online mob phenomenon in China has emerged as a growingly strong power in society and has large influence on people’s real life. As a kind of dangerous crowd behavior, it indeed leads to an invisible but alarming violence. Though government starts to pay more attention to online expression regulation, it seems impossible to curb the emergence of such activity. From my perspective, it is unquestionable that Internet should be free and the online freedom of expression should be protected. Such is especially important for a rapidly transforming country like China, and it will definitely help to build a more open, fair and democratic society. However, all these online public space: blogs, chat rooms, bulletin boards and so forth are just a platform for information communication based on new technologies, not a court. Though netizens have the right to express their ideas and opinions, they should not go across the line. Furthermore, numerous historical and current events have proved that the moral standard of the public (the Internet users in this case) is not always trustworthy, and crowd behavior in most of the time turned out to be irrational activities with miserable endings.
From my perspective, the protection of reputation in new media era is both a legal and moral issue. In many cases, defamation exists, damages are made, but no one could be identified to take responsibility since the online identity is fake and anonymous. Policies and laws should be further developed to have a better protection over every social member’s privacy and other interests. However, when present state of technology and legal system cannot promise a whole protection, we have to go to morality and rise the moral standard of Internet users by means of education, mass media, community and so forth. The guideline is the minority who are hurting others should be prevented but the majority’s freedom of expression should not be disturbed.
To sum up, compared with traditional media, new media such as the Internet provides a more rapid, interactive and unrestricted measure in communicating all kinds of information nation-wide and internationally. It is a technology we should take advantage of, but also necessitates a rigorous and systematic regulation over its uses. Law and legislation always develop with the pace of the times and they exist as a measure to balance all kinds of power and interest in society, including personal, public and national. The widely use of new media today questions how to fulfill the vacuum in legal system concerning the issue of reputation and defamation, and the ever-changing legislative and juridical framework of contemporary society is again in a transition. It reveals the development of our society and the development of human civilization; it also indicates the concerns and protection of human rights. The final goal of such transition is to enable all users of the new media to enjoy their own rights and freedom in the cyberspace while guarantee their uses do not infringe others’ rights and freedom, which is also the spirit of a civil society.
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