Thursday, November 06, 2003

On Blogger And Evasion of Responsibilty

I had until yesterday avoided directly contacting Blogger over Diego's shameless antics using their facilities. I knew that Riverbend had been told to put any complaint in writing so I didn't see much chance of me, a party not directly affected, having much influence. But yesterday when Wendy McElroy contacted me to ask for my help in taking her complaint further, I did put in a request from Blogger to get their postal address. And as will be seen, that's not quite all I said:

I'm afraid this is quite a serious matter. I've been contacted by an individual Wendy McElroy, a Fox News contributor who feels her reputation may have been damaged by having her picture featured on the anti-free speech blog Please note the S there - this is not a complaint about riverbendblog. Ms McElroy wishes to register a complaint in writing and has asked if I can provide her with a postal address for blogger. I would appreciate your assistance with this. I also believe there have been other complaints registered about the same blog, in fact there is quite a list of people who have had their artwork used against their wishes there. Even now it is hosting among other stolen works an article plagiarised and unattributed from the New York Times.

Anyway a postal address would be appreciated for now.

The response I got within hours did include a postal address for Blogger (attn: Blogger, 2400 Bayshore Pkwy,Mountain View, CA 94043) but it also, somewhat to my annoyance said this:

"Blogger is a provider of content creation tools, not a mediator of that content. We allow our users to create blogs, but we don't make any claims about the content of these pages. In cases where a contact email address is listed on the page, we recommend working directly with the author to have this information removed or changed."

I was sufficiently perturbed by this email to fire off one in immediate response. It is perhaps not as well thought out as it might have been but I saw no reason to hold off. My point, as will be seen was quite simple - if Blogger is "not a mediator of content" then why in God's name do they have a TOS which seems to give a very different impression?:

Thanks for the address. I have forwarded it to the injured party.

A couple of points

a) Although there is a listed email address on the site, the owner does not respond to it.

b) While I appreciate what you say about not being a mediator of content you must surely note the incongruity in saying that while listing in your TOS for example:

You agree to not use the Service to:
(a) upload, post or otherwise transmit any Content that is unlawful... harassing or otherwise objectionable;


(c) impersonate any person or entity, including, but not limited to, a Pyra official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;


(d) post ... any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships...


(e) post ... any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party


(i) "stalk" or otherwise harass another;

You agree that Pyra, in its sole discretion, may terminate your password, BlogSpot Site, use of the Service or use of any other Pyra service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Pyra believes that you have violated or acted inconsistently with the letter or spirit of the TOS.


In point of fact the user of the riverSbendblog violates your TOS daily, and is very flagrant breach of the letter, and what any reasonable person would view as the "spirit" of the TOS.

There just seems to be a very big contradiction in your claiming the right to terminate an account for these kinds of breaches and then, when you are told, these kinds of things are happening to just say you are not a "mediator of content". Basically you claim in your TOS the right to be that very thing. And then when asked to exercise the responsibility to use the right you have claimed you shirk from the responsibility, as far as I can see.

Why not just strip most of your TOS down to what you just told me: "Blogger is a provider of content creation tools,not a mediator of that content." That way at least you won't have to tell people that you aren't going to enforce your TOS, which is in essence what you have just told me.



Now I don't want to get into a weighty discourse over the philosophy of law here, (I'm a bit rusty on the subject for one thing) but

a) Blogger have a position of obvious authority - as the host of the riverSbend smearblog
b) Blogger have explicitly reserved for themselves the right to use that authority - to deny service for posters objectionable material
c) When told good evidence exists that such material has been posted, Blogger has denied the possession of that right.

Now the thing with the TOS of course as opposed to the mandate by a police force, or legal system is that it is not explicitly a two way contract. The TOS claims for them the right to do things, but not the *responsibility* to do it. Essentially it gives them power without responsibility, not a good thing.

Now don't get me wrong. I'm not saying that Blogger should immediately yank a site without investigation just because someone's sent them a couple of email complaints. That would be a terrible situation. But what worries me is that Blogger, anticipating a written complaint, distinctly seem to be trying to dissuade that complaint. There is definitely a suggestion there that even if a written complaint is received Blogger will try to claim they have no authority to act over the content of a blog, even where they very plainly do - unless their TOS is a work of utter fantasy

Obviously of course an emailed complaint to the blogger should be the first recourse but where that bears no fruit, as in this case, there must be an intermediate means of action beyond actually taking the thing to court. One would hope so at any rate.

Because in this case having laid out their rights so clearly in the TOS to act, and then not acting here Blogger sends out a very disturbing message.

Because if, as one would assume from the TOS, Blogger has the right to act where the TOS is violated, and yet does not act in this case, then the clear message from them is:

"Blogger believes that riverSbendblog is both in the spirit and the letter of their TOS. It is not transmitting unlawful or objectionable content. It does not misrepresent an affiliation with any individual. It does not infringe any copyrights. It is not harrassing of any individual"

And that is an insult and an affront to at least Riverbend, Wendy McElroy, and every other individual whose work appears unattributed there. Indeed it is an insult and affront to the very concepts of the English language and to common sense.