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Moderation and 'superinjunctions'

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Paul Wakely Paul Wakely | 13:38 UK time, Tuesday, 24 May 2011

I'm the Editor, Moderation Services for BBC Online, which means I oversee moderation of your comments across the BBC website.

I wanted to respond to some interesting discussions about the moderation we've applied to comments about the 'footballer injunction' that has received so much coverage during the last few days. Following the naming of the footballer in Parliament I will, as much as I can, explain where we are drawing the line with moderation, and explain why some of you have had your comments removed for saying things everyone is saying on Twitter.

As it stands as I write this, on the BBC website, you can say that the footballer who had an injunction in place regarding an alleged affair with Imogen Thomas, was named in Parliament as being Ryan Giggs. But the word 'alleged' is important - any statement that for example an affair, or blackmail took place is likely to result in your comment being removed due to the potential for defamation which the BBC - or indeed you - may not have sufficient proof to defend. In addition as the injunction has still not been lifted we are still technically bound by its provisions. However, we have taken the view that we are able to report the parliamentary proceedings.

To those of you who use Facebook and Twitter, these rules probably seem quite strict. Injunctions, super or not, are difficult to moderate due to the secrecy around them, and particularly in a widely reported instance like this. The situation also changes quickly - the Sun newspaper had an application to lift the injunction rejected both before and after Giggs was named. We've had to update our guidance to the moderators on recent injunctions several times, speaking to the BBC lawyers to see what we could legally publish as more information became public.

I accept though that there may be times when the moderators have been over-cautious. If you believe this applies to your comment, you can make use of our appeals procedure. However, if you're one of those users who had me working at 11.30 on Saturday evening due to your increasingly creative ways of trying to breach the injunction, your appeal probably doesn't stand much chance of success...

But some of you are probably asking: 'Does the BBC need to moderate comments about the injunction at all?'

Unfortunately, much of the reporting of this issue has wrongly been characterised as 'print media vs the Internet'. The question is really whether the big social media sites - with companies and servers based outside the UK - are out of the jurisdiction of an injunction imposed by English courts. This question might be answered in the coming months. What's not in doubt is whether the BBC website is subject to the injunction. It is, and it's worth noting that the BBC has in the past been compelled by the courts to hand over the details of users accounts in the same way Twitter has been asked to do so in this case.

As I've written before it's worth remembering that there are often valid reasons for reporting restrictions and injunctions, and this may prove to be the case this time.

Finally, the majority of comments across the BBC website are reactively moderated, so if your comment has been removed and you've seen another similar one that hasn't, that's probably why.

Paul Wakely is Editor, Moderation Services for BBC Online

Comments

  • Comment number 1.

    I can imagine its a potential legal tightrope the BBC need to walk.For me, common sense applies, sadly there are those who post where common sense is lacking and a desire to push boundaries is seen as par for the course.My response to those who don't believe in moderation in all things shouldn't then try and push boundaries on sites that do have common sense rules. As for twitter, I think the whole concept is frankly aimed at those intellectually challenged and unable to hold a proper coverstaion elsewhere. 140 characters to say something meaninful is frankly a joke, worse than txt speak. To use such a medium to flout the law shows how those who use it are, as I say, intellectually challenged.

  • Comment number 2.

    Sometimes it's hard to see the "line" from this side of it. I had a comment removed for "Potential defamation" because, before the Parliamentary intervention, I had the temerity to post "Ryan Giggs is a footballer. (Allegedly.)"...

  • Comment number 3.

    'As for twitter, I think the whole concept is frankly aimed at those intellectually challenged and unable to hold a proper coverstaion elsewhere. 140 characters to say something meaninful is frankly a joke, worse than txt speak.'

    And yet the BBC continue to promote it, day in, day out. The BBC understandably have to consider legal issues, but they must be feeling a little sheepish after all this.

    I saw how certain boards went over the weekend. Some people really were taking the proverbial, even those stalwarts of Mustardland, more so there than anywhere else.

  • Comment number 4.

    What does international law have to say about this?

  • Comment number 5.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • Comment number 6.

    Moderation time can vary wildly. The 400 character limit on the new style blogs has made reasoned debate more difficult than before, this is exacerbated if moderation takes more than five or ten minutes.

    Are you able to let us know what the targets are for moderation queues?

  • Comment number 7.

    The question is really whether the big social media sites - with companies and servers based outside the UK - are out of the jurisdiction of an injunction imposed by English courts.

    Social media sites based outside the UK are not within the jurisdiction of a UK court injunction, and it's a fair bet that any legal action against Twitter in the US courts concerning these cases will fail. Wikipedia has also announced it will not feel bound by UK press injunctions.

    Russ

  • Comment number 8.

    #2 Hi Peet - if that's all the comment said, then it sounds like one where the mods may well have been over-cautious, please do appeal the decision if you want the comment reinstated. As I say, there were a lot of people playing games over the weekend and some safe comments were caught in the crossfire

    Paul

  • Comment number 9.

    #6 I don't want to take this off-topic please Kit, but comments that do not require referral http://www.bbc.co.uk/blogs/moderation.shtml#queue should come through in a maximum of an hour.

    They were less than ten minutes when I checked a moment ago, and we're making some behind the scenes changes that will speed up the busiest stories.

  • Comment number 10.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • Comment number 11.

    #8 Thanks, Paul, that's very kind, but no longer necessary. On the day many of us were trying to figure out just what was getting hundreds of posts removed, and what we were still allowed to say.

    I had another removed for saying that Ryan Seacrest hosted "American Idol". :-)

  • Comment number 12.

    Hi Peet

    As I'm sure you'll appreciate, the secrecy means that it is very difficult for us to tell users what's going on at the time, so I understand that the reasons for removal may be have been mystifying for some users.

    That said, there were a lot of people who were just trying to see what they could get away with saying, and others that were simply trying to breach the injunction, which only resulted in my time and budget wasted and some of those users ending up in premod.

    Paul

  • Comment number 13.

    #12, "...the secrecy means that it is very difficult for us to tell users what's going on at the time..."

    Yes, from what I understand you are put in an impossible position. By the BBC's own rules you must give a reason for why a posting was removed, yet if the generally-understood terms of a "Superinjunction" are true your only two options are to lie, or to break the injunction. I don't envy you in those circumstances.

    But it really did descent into farce near the end. Another posting I had removed asked whether we were allowed to mention "Greggs the Bakers"... :-)

  • Comment number 14.

    A bit of a puzzle.
    Person "A" is protected by Injunction, or a Super Injunction, so his/her name is kept secret and not known to anyone, plus in the case of a Super Injunction, even the existence of the Super Injunction is not known to be in existence to the public at large.
    Then one day, Person "B" discusses, on a social networking site, in a pub, or a Gossip column, about some affair or wrongdoing which he knows about, by person "C". It so happens, that without Person "B"'s knowledge, the person "C" is actually Person "A", who is covered by the Injunction.
    What puzzles me, how can the Court prosecute and prove, that Person "B", while talking about Person "C"'s affairs, could have known the identity of Person "A", and so deliberately broken the Injunction, as the Injunction or Super Injunction kept the identity of Person "A" secret in the first place?? A bit of a Kafka situation.
    Any legal explanation would be of interest.

  • Comment number 15.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • Comment number 16.

    …the secrecy means that it is very difficult for us to tell users what's going on at the time...

    Nothwithstanding the case where a name has been named in Parliament, and which could therefore legitimately be referred to on a BBC site, perhaps the House Rules could contain a restriction along the lines of 'naming a name subject to a UK court injunction', and which CCT could then cite as the reason why a message had been moderated.

    Russ

  • Comment number 17.

    #16, The problem with that, Russ, is that in the case of a "superinjunction", the notification email itself would be breaking it by admitting that the name was associated with an injunction. They can't win.

  • Comment number 18.

    Thanks, Peet. Ok, so a specific superinjunction makes it illegal to even mention that specific superinjunction exists. In my understanding though, and it is a very imperfect one, is that if a House Rule were expressed in terms of not allowing 'naming a name subject to a UK court injunction', i.e. in general unspecific terms, then I think, trying to be pragmatic, that might be the closest the BBC could get to having a rule without breaking a particular superinjunction about a particular individual. I accept though that the wording of a CCT moderation reason connected with such a rule would be highly problematic, but then CCT moderation reasons are never specific anyway, at least in their initial response.

    Russ

  • Comment number 19.

    17. At 11:26 27th May 2011, Peet the Sadly Truncated

    How do the moderators know about the superinjunction?

  • Comment number 20.

    The comments moderators have taken a very regressive interpretation of "contempt of court" and defamation. Specifically, without investigation, allegations of wrongdoing that name courts, judges or even state court systems are eleminated without regard to truth of a matter. Essentially if wrongdoing by a judge or "officer" is alleged, the comments are removed and/or authors banned/blacklisted.

    What the censures fail to realise is that verifiable truth is NOT defamation and if it involves wrongdoing by "officers". A public comment that provides specifics of who and how the wrong is perpetrated is NOT CONTEMPT OF COURT.

    For example, when I comment on justice issues I often refer to the Indiana Court of Appeals and the "certification" of an "affirmation" where the judges have knowingly and intentionally certified open defense attorney fraud. This is a crime per the US Code 18 USC 1017 and 1018. When I refer to the specifics, my comments are stricken without any attempt to verify the truth of the matter.

    The act of "certifying" known fraud is a crime, that meets the definition of "repugnant to the Constitution" and is NOT CONTEMPT of court. Yet moderators continue to ban my comments and I'm blacklisted on PBS entirely. This is simply lazy journalism, not assuring that policy is lawful or justly applied.

    Whats more is that elemination and blacklisting commentators with first hand knowledge and experience (who can provide verification of alleged wrongdoing) actually facilitates it, since they have no fear of exposure. Indiana's disciplinary commissions for attorneys and judges are investigating only 2% of formal complaints and dismissing 98 without investigation. Combined with media policy of not posting, blacklisting and influencing PBS to omit comments, the judicial and local governments have evolved into an "anything goes" mentallity, because of the sound knowledge that the repugnant behavior will not be exposed OR investigated/analyzed truthfully.

    In 4 cases where I have been plaintiff, the judges have allowed defense attorney fabricated evidence. Now that "alternative defenses" are being allowed, each of them contain multiple (5 at least) defenses that are false, conflict materially with the facts and contain significant misreprentations of law (meeting definition of PERJURY). In each of the rulings the judges have taken portions of the defenses and weaved together a ruling that is not cogent, misrepresents both fact and law.

    Essentially the judges have assisted the criminals to get away with crimes... also a federal offense that

  • Comment number 21.

    Hi TSIndiana

    Your comment is more concerned with defamation than the injunctions this post is about. You are probably aware that the UK has some of the strictest libel laws in the world, laws which would likely require the BBC to be able to provide proof that an accusation was true. This means that unless we have this in our possession, we cannot publish comments that carry a clear risk of libel - you may have verified the truth of this matter to your own satisfaction, but unless we have done so ourselves we would struggle to defend a claim.

    Paul

  • Comment number 22.

    How do the moderators know about the superinjunction?

    A pertinent question, and I await the official response with interest! The way I see it is that the law operates in this area on a 'need to know' basis. Whilst the media is not allowed to report the existence of a superinjunction, it does have to be aware of its existence, and a superinjunction has to be notified to the media at large (at least the media within the geographical jurisdiction of the court involved). This would include all newspapers, presumably local as well as national, as well as all broadcasters. Newspaper/magazine editors and broadcast newsroom editors would presumably then have to tell all of their troops "don't forget you must not mention person A as having an alleged affair with person B". And then there are all the non-traditional news outlets like the major internet news sites and the bloggers etc. Wherever that tricky notification line is drawn, essentially everyone within the whole of the UK media industry (half a million?? - more?) will know who A and B are.

    Presumably therefore, the BBC had to tell its moderators about the details of the superinjunction.

    Russ

  • Comment number 23.

    It is so important that we maintain the justice system in this country. I agree that the word 'alleged' must be remembered. As a nation we are prone to assuming rumour is fact and until that's approved by a court of law it remains 'alleged' - innocent until proven guilty, so I absolutely agree that the BBC must hold onto this and moderate comments that go against its own principle and those of our nation. Keep up the good work.

 

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