The dark side of the Internet

Katharine Gelber, The University of Queensland

Saul Levmore and Martha Nussbaum (eds) The Offensive Internet: Speech, Privacy and Reputation, Cambridge, MA, Harvard University Press, 2011 (299 pp). ISBN 9-78067405-089-1 (hard cover) RRP $39.95.

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. The nature of the medium has specific consequences not necessarily evident in other media. The ubiquity of the Internet, the permanence of posts, and the accessibility of data through search engines that do the looking for you mean that material that makes its way online can affect people’s lives over the long term and in profound ways. When you combine these features with the anonymity of posters and the difficulty of regulating the Internet, it means that people do things and say things on the Internet that they would not do or say in face to face conversations, or at least if they did there would be legal and moral consequences. The Internet as a medium provides a uniquely powerful and wide reaching mechanism with which to do bad things, yet relatively little work to date has acknowledged this aspect of it.

The book is a particularly timely reminder of the potential problems of the Internet given the Wikileaks controversy. Many free speech advocates have sprung to Julian Assange’s defence, arguing for his freedom of speech in releasing controversial documents. On the one hand, the governments that have opposed his release of confidential documents are overzealous in their demands for secrecy. Where matters are of legitimate concern to citizens in examining and criticising the activities the government undertakes in their names, openness and transparency ought to be the overriding presumption, and governments often privilege obfuscation and confidentiality instead. On the other hand, there is evidence that Assange’s actions have put lives at risk. In July 2010 he released the names of several hundred Afghans who had assisted Western forces (Manne 2011). In this action, he revealed himself to be one of those people for whom free speech is almost absolute—he appears to believe that free speech ought to mean that anyone can say anything they want at any time.

Of course this is the antithesis of free speech. A free-for-all simply means that those with the most resources, or the most power, or the loudest voices get to say whatever they want with impunity and that the marginalised do not get to respond in any meaningful way. Assange, in trying to combat the surplus of power over information held by governments over the world, instead tried to establish himself as the most powerful speaker. Yet he deliberately chose not to filter the information he released. This demonstrates his lack of understanding of the relative powerlessness of those whose names he revealed, without consultation, without their permission, and apparently with no regard for their personal safety. Speech does things—it can discriminate, it can marginalise, it can abuse, it can vilify and it can harm. Free speech absolutists insufficiently appreciate the effects of their speech.

Another relevant aspect of real freedom of speech insufficiently appreciated by absolutists is that, like any right, freedom of speech carries with it commensurate responsibilities. The greater the authority with which one speaks and the greater the likely audience, the greater the commensurate responsibility to speak well—to speak in a way that does not violate anti-discrimination principles, or that does not marginalise or harm. In Assange’s recent commentary on the Andrew Bolt case, he manifestly fails to understand these core elements of the principle he purports to hold so dear (Assange & Robinson 2011).

A few simple keystrokes can slur, defame and harm unwitting victims.

By contrast, this book intelligently and thoughtfully tackles the potential down sides of near-absolute freedom of speech—which the Internet, as it currently operates, appears to provide. Importantly, the editors acknowledge that overall the Internet ‘benefits far more than it offends’ (p. 1). Nevertheless, they also express concern that a few simple keystrokes can slur, defame and harm unwitting victims who have no control over the material put online by others about them.

As well as detailing problems with the Internet, this book makes careful suggestions for reform. These are located within the United States’ particular legal framework, which limits their applicability since defamation and media regulation laws in that country have been developed in the context of the First Amendment, the most powerful legally protective framework for freedom of speech in the world. Nevertheless, the problems and ideas discussed here resonate globally.

In particular, the book suggests that the kinds of regulations that currently apply offline ought also to apply online. The reasons for this are many. Daniel Solove, for example, argues that because people’s activities can be recorded on the Internet, teenage pranks or poor choices can haunt people forever. This means people are at risk of losing access to the humanness of second chances, learning from mistakes, and changing their behaviour for the better. This, in turn, affects people’s ‘freedom to experiment, to grow, and to change’ (p. 16). He advocates the updating of conceptions of privacy, based not on secrecy but on retaining some control over how personal information is used in the public domain (p. 21). This might include the use of a ‘notice and takedown system’ for tortious comments, where a provider could be notified that material is considered to be in breach of defamation or other law, and requested to remove it. He argues that the law currently exalts speech over privacy, and that the balance between the two needs to be shifted (p. 27). A ‘notice and takedown system’ is also advocated by Saul Levmore, who argues against the idea that the Internet is somehow a special realm of discourse that ought to attract special protections. He argues also for greater identifiability of authors, so that familiar remedies such as defamation can be brought into play (p. 62).

In the marketplace of ideas, truth will not always win.

Danielle Keats Citron documents the way the Internet can be used to practice virulent misogyny. She details threats of sexual violence, including the publication of women’s home addresses and suggestions to target them for sexual violence (p. 31) by ‘cyber mobs’ who ‘disproportionately target women’ (p. 32), especially lesbians and women of colour. She argues for an anti-discrimination response to this gender and race-based harm, which can result in targets’ withdrawal from the public sphere. Martha Nussbaum also discusses the particular harms enacted on women on the Internet, events in which ‘relatively powerless people gain enormous power over the lives of particular women’ (p. 69). Men who feel threatened by a woman’s outspokenness, or intelligence, or better grades in university than their own can and do target women for virulent abuse online. Nussbaum argues that the targeting of ordinary women on the Internet, often by men completely unknown to them, amounts to stalking (p. 75), in that it seeks to ‘colonise’ their minds, and to prevent them from functioning normally.

Cass Sunstein demonstrates that the evidence shows that in the marketplace of ideas, truth will not always win (p. 106). This is particularly the case on the Internet, where false rumours and untruths can thrive. This justifies the imposition of a ‘chilling effect’ on falsities (p. 92). Frank Pasquale tackles the issue of technological advancement, which renders ineffective self-help strategies to combat falsehoods or negative information. Organisations and search engines crunch data on ordinary people in many ways that impact on their lives. These include credit assessments, employers checking online information before hiring, insurance companies assessing risk, and universities who use Google searches when deciding on students’ applications for admission. Pasquale argues that people ought to be able to force decision-makers to reveal the information obtained from online sources, and to dispute inaccuracies and request the deletion of old information (pp. 111–113).

Search engine Google comes in for particular criticism from Brian Leiter, who points to what he calls ‘cyber-cesspools’—sites that dedicate themselves to demeaning, harassing and humiliating speech that violates human dignity (p. 115). Such sites, he argues, are given prominence in Google searches, and so Google should do something to prevent both the kinds of harm that, if they occurred offline, amount to defamation and the kinds that harm human dignity that may be legally actionable under anti-discrimination provisions (pp. 162, 170). Further, Leiter argues convincingly, cyber-cesspools ought not to attract protection on free speech grounds when considered against the dominant philosophical arguments in defence of freedom of speech (p. 163). These are the argument that freedom of speech assists the development and maintenance of individual autonomy, that it assists democratic self-governance, and that it assists in the discovery of truth. The material on cyber-cesspools does none of these things, indeed it is harmful to all of these goals, and therefore it should not to be considered legally protected speech. Leiter ought to know—he has himself been the target of vicious cyber attacks. In 2005, he wrote to a proprietor of a well known right-wing law blog, expressing concern about the anti-Semitism, sexism and racism on one of these sites. The site’s administrators defended their actions on the ground of freedom of expression. Leiter attempted to shame them into standing down by presenting statistics on the hatred on the site. Instead, his actions precipitated torrents of personal threats, harassment and defamation. Interestingly, he now regards his actions at that time as having been naive (pp. 157–159).

Cyber-cesspools should not receive ‘free speech’ protections.

Greater depth of consideration to the question of regulating the Internet in ways compatible with First Amendment strictures is provided by Geoffrey Stone, noted constitutional law scholar. Stone considers whether it might be possible to impose restrictions on speech on the Internet, given the privileging of public discourse even when it includes unpleasant, nasty or caustic speech. Some of the (limited) restrictions on free speech permitted offline are also applicable online, including restrictions on true threats, fighting words (those likely to lead immediately and causally to a breach of the peace), commercial advertising, incitement to illegal activity and child pornography (p. 175). Although Stone concedes the greater magnitude of harm that can be occasioned online, he argues this is no reason to grant it a lower level of protection under the First Amendment (p. 176). He specifically considers the question of whether the publication of non-newsworthy, offensive and private information about individuals is able to be regulated, concluding that the constitutional obstacles to such regulation are vast. Thus, rather than suing for damages as a remedy, he argues we are better served by prohibiting intrusive methods of information-gathering (p. 194).

While constitutionally persuasive, Stone’s argument offers no solace at all to a person who is targeted for online attacks based on lies and innuendo. John Deigh reconsiders the impact of the famous 1971 Cohen v. California case, in which a person wearing a jacket emblazoned with the slogan ‘Fuck the Draft’ successfully appealed against a conviction for offensive conduct on First Amendment grounds. This case established that emotive language can not justifiably be restricted on the basis of the emotions it invokes (p. 195). Deigh concludes that this position is philosophically unjustifiable when the sole purpose of the language is to evoke an emotional reaction (p. 198).

The authors in this volume are keenly aware of the free speech problems posed by the Internet regulation, yet nevertheless forceful in making strong and viable arguments for seeing the Internet in a different way. Ultimately, their claims are summed up by Leiter,

Prior to cyberspace, if you wanted to reach more than your immediate circle of acquaintances, you usually had to have some kind of competence, education, status, intelligence and ability: otherwise no one would listen to you or publish you (p. 161).

Those days are over. It’s time we realised, and did something about it.


Assange, J. & Robinson, J. 2011 ‘Play ball, not Bolt, in free speech debate’, The Age, 28 October [Online], Available: [2011, Nov 24].

Manne, R. 2011 ‘The Cypherpunk Revolutionary’, The Monthly, 3 March [Online], Available: [2011, Nov 25].

Katharine Gelber is an Associate Professor in the School of Political Science and International Studies at the University of Queensland. She recently published Speech Matters: How to Get Free Speech Right (UQ Press, 2011), which is a finalist in the Literature (Non-Fiction) category in the Australian Human Rights Awards 2011.

View other articles by Katharine Gelber