Guest post: Being Generation Y

This guest post was written by Nastassja de la Guerre, a candidate attorney at Jacobson Attorneys. You can follow Nastassja on Twitter at @ndelaguerre.

The spread and ever increasingly availability of the Internet and digital and media technologies are the biggest evolution in human history since the industrial revolution. These developments have sent Generation Y on an evolutionary rollercoaster traveling faster than your average broadband and have caused many social changes and adaptions. With these changes emerge a generation that is completely misunderstood and highly criticized.

Among the MANY complaints about Generation Y are self-centeredness, an inability to manage time, a need for frequent praise, a lack of respect for elders, a sense of entitlement, little understanding of client service and poor face-to-face communication skills. “Generation Y is entitled, lazy, selfish, tech savvy, and incompetent,” is how Scott Greenfield, one of the finest criminal defence attorneys in NY puts it. Is this really the case? Or are we merely misunderstood?

We were not part of the starting up stages of the dot com boom, but rather we are part of an age where if you don’t have Internet access or a mobile phone we actually think you are an alien. 1995 marked the commercialisation of the Internet. I was 6, a year before I started school.  We are part of a generation where information is literally at our fingertips and Google has become our professor.  To put it into perspective: the average 15 year old has access to more information than the president of the USA had 15 years ago. Does this mean we are arrogant and know-it-alls? Nope, it just simply means we are well informed.

Like any other generation, generation Y has been shaped by the events, leaders, developments and trends of its time. The rise of instant communication technologies, new media used through websites like YouTube, Instagram and Pinterest and social networking sites like Facebook and Twitter has shaped us into the people we are, how we function in the work-place and how we respond to the law and government. We are in the age of mass creativity. We no longer want to be told what something is or who we are or how we should act. Rather, we make up our own minds and choose our own paths. This independence is highlighted by the heightened importance we place on our human rights, particularly the right to privacy, equality and freedom-the principals our Constitution is founded on.

Yes, of course, with new technology comes new crime and misbehaviour. We have seen this in the London riots of 2011 where social media platforms and instant messaging were largely to blame for how well the riots were orchestrated and how communications regarding the riots could be sent across to different individuals instantly.  Or the infamous Stuxnet virus, designed by unknown parties, which made headlines in 2010 when it worked its way into Iran's nuclear programme. Or the Occupy Wall Street movement. But rather than blaming social media and instant messaging as well as our apparently immoral, disrespectful and lazy generation, governments should ask Y we are the way we are.  Economic prospects for the Millennials have worsened due to the late 2000s recession. Out of a population of 49-million, 7.5-million South Africans are currently out of work. Young people are worst affected, with over half of 18- to 25-year-olds unemployed. "This is a crisis. We call it a ticking bomb," said Zwelinzima Vavi, Cosatu's general secretary. "We think that one day there may be an explosion. Seventy-three percent of people who are unemployed in South Africa are below the age of 35 and a lot of them have been to universities.” Several governments have instituted major youth employment schemes out of fear of social unrest due to the dramatically increased rates of youth unemployment, with South Africa being no exception. President Zuma has promised to create five million jobs by 2020 in his recent State of the Nation address.

You may ask Y it is so important to change employment schemes and the working environment. Generation Y make up 27% of the population and about 5% of the legal profession. We’ve grown up in an environment where every fact, idea and opinion has a forum in which to be expressed. This leads to a movement away from the idea of being ordered to do something by your employer, but rather a strong need to collaborate and exchange ideas

Aside from the unemployment, other challenges we face is the world we grew up in. Our childhoods were tainted by major social unrest and reform. Unfortunately we also experienced a lot of empty promises from government and institutions and A LOT of divorce. This perhaps led us to learn to take care of ourselves and not to rely on institutions and outdated traditions. We have moved past the counter-culture of the 1990s. Race, sexuality, political views, religion, marital status don’t define who we are. We define ourselves through expression and collaboration. Therefore, Generation Y has high expectations of their employers, we seek out new challenges and are not afraid to question authority. This could become extremely challenging in the legal profession as well as other classical careers such as accounting, architecture, etc as these professions are based on age-old traditions and knowledge passed on from one generation to another in working environments where there is a definite hierarchy. Richard Susskind expresses it very clearly by stating that a trait common in large law firms is “irrational rejectionism”– perhaps because it is far easier to reject new ideas than give them a chance. Let’s take Paul Chambers’ story: He was arrested for a tweet he sent about Robin Hood Airport in England in January 2010. The airport suffered repeated service delays and disruptions due to cold weather, prompting Chambers to tweet:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

Chambers was later convicted for sending a “message or other matter that is grossly offensive or of an indecent, obscene or menacing character” under the UK Communications Act of 2003, causing him to lose his job, gain a criminal record and a mountain of fees and legal costs. TV personality, activist, and social media comedian Stephen Fry has taken sides in the Paul Chambers “Twitter Joke Trial,” saying that British judges fundamentally don’t understand how Twitter works. Fry’s stance raises the issue about the generation gap between our technology and social media driven generation and those asked to adjudicate these issues

But it isn’t all bad for us.

In his recent state of the nation address, President Zuma had typed his entire speech on an iPad. The ANC spokesperson describes the president as always being on his iPad and constantly checking and responding to social media platforms, especially Twitter.  Helen Zille is known for her responsiveness and active engagement on both Twitter and Facebook. This indicates that the government is making the move into our generation and are desperately trying to connect with us. The government is starting to recognise our need to be heard and to be able to express our opinions, a strong feature of Generation Y.

Image credit: Generation Y by Mighty mighty bigmac, licensed CC BY-ND 2.0

Your cloud assets and profiles after you die

@pauljacobson any chance you could do a post on what happens to your cloud based assets (apps, music, etc) when you die?

— Imel Rautenbach (@imel) January 5, 2012

Imel Rautenbach recently asked me what happens to your content and profiles in the cloud when you die. Its an important question and I've started hearing it a lot lately. There are a couple reasons for this. The first reason that comes to mind is that people are increasingly concerned about what happens to their Facebook and Twitter profiles after they pass away? As ephemeral as these profiles and their content may seem, for many people these services (and other social Web services) document a person's thoughts and life experiences. Facebook with its Timeline feature is specifically designed to become a social and interactive life journal where you effectively maintain a media rich narrative of your life and your connections.

In some cases these social services will offer family and friends a way to keep a deceased person's profile alive in a suspended state. Facebook, for example, can memorialise a profile:

When a user passes away, we memorialize their account to protect their privacy. Memorializing an account sets the account privacy so that only confirmed friends can see the profile (timeline) or locate it in search. Friends and family can leave posts in remembrance. Memorializing an account also prevents anyone from logging into the account.

Dormant social media profiles and accounts could prove to be fertile ground for identity thieves going forward, especially if the late user didn't make use of the relevant privacy controls to restrict access to sensitive personal information.

Another reason why its important to think about your assets in the cloud is that we are increasingly storing significant amounts of data on cloud services. These data include photos and other multimedia as well as business and financial data. There are a variety of services which make it very easy to keep our data in the cloud and at a relatively low cost. You may use Evernote to store important information about insurance policies and bank accounts or Dropbox to store vital business and personal documents. Services like Backupify help you back up a variety of cloud based services and Amazon S3 gives you access to vast amounts of storage space at a pretty low cost.

Until now families sorting through a deceased family member's estate would have had to collate and work through assorted files and paper documents, that will likely change. Families are finding themselves faced with disparate digital archives which often contain the sort of information they require to manage and wind up an estate. It is very possible that a person could die and leave very little paper-based information which a family would require to manage and wind up the estate because all of that data would be digitally stored in the cloud. The challenge is that the only person who tends to know how to access those accounts has passed away, taking those details with him or her. One option would be to contact the service concerned, armed with proof of the person's passing, and ask for access. Another is far simpler and requires some planning.

Services like LastPass and 1Password offer convenient and secure ways to manage passwords for all these cloud services. They offer tremendous security benefits because they rely on a master password to securely pass your account specific access credentials to the relevant service. This means you don't have to type in your username and password every time and risk that being intercepted. If you are not using one of these services, you should seriously consider it. Aside from the security benefits, these services also offer a way for your family members to access your cloud services when you are gone. One strategy is to give your master password and username to your spouse and a second trusted family member or friend. Provided they keep that information securely, it will provide them with a convenient way to access your important data after you are gone. Just remember to pass along any password or other access credential updates!

Unfortunately your cloud services profiles and accounts are not the sorts of assets you can hand down to your heirs. The rights you have to access and use these services tend to be personal rights which tend to terminate when you die and can longer exercise any rights. The nature of these profiles and accounts is that they are closely associated with a person's identity, unlike assets like a house which can be transferred to a different person and in which owners tend to have "real" rights which are formally registered. One implication of this is that these profiles and accounts could be terminated when the services concerned learn of your death so it is essential that you give your family and, where appropriate, close friends access to these digital assets.

As an aside, it looks like legislators are starting to look into how best to deal with these digital assets after death. StThato pointed this out to me:

Some interesting reading for @PaulJacobson on Digital Assets After Death | mashable.com/2012/01/26/dig…

— StThato® (@StThato) January 26, 2012

What parents can do to better protect their children's privacy online

Our children are growing up with digital devices and an increasingly social Web and are, in the process, sharing their personal information, oblivious to the risks. Parents are increasingly finding themselves in foreign territory with no real idea where to begin to address their children's privacy. This post is intended to give parents an overview of the privacy frameworks in place and some of the factors to bear in mind.

Protection of Personal Information Bill

This is a draft Bill, making its way through Parliament at the moment. It gives the right to privacy in the Bill of Rights more substance. The Bill focuses on privacy as in informational self-determination, as opposed to privacy as in secrecy. It establishes a framework for what personal information can be collected from whom and what can be done with that personal information. I wrote about this in my post titled "Privacy is about choice":

Privacy has become more about informational self-determination - each person's ability to decide what becomes of their personal information. Facebook has been a bit of a cowboy with users' personal information for some time now and the primary concern, as I see it, is that Facebook has decided, from time to time, to expose more of users' profile information to the public Web and make that level of disclosure a new default. It has also progressively changed its privacy policy to allow for greater transparency. What it has done is severely limit users' choices to the point where their choice has become whether to include information on their profiles or not, bearing in mind that any of their personal information could suddenly be made public.

While the Bill is still subject to change, we can draw on a few of the trends in the Bill:

• Personal information can only be collected with the data subject's consent, generally speaking (the term "data subject" is the term used for the person whose personal information is collected);
• Data subjects' consent must be informed and this means the party collecting the personal information must inform the data subject what personal information is being collected and what it will be used for (this is the rationale for detailed privacy policies);
• Personal information should only be used for the purpose it is collected for and should either be destroyed or anonymised (the Bill talks about "de-identifying" personal information)
; and
• Personal information should be kept secure and only disclosed where the data subject consents to disclosure or where required by legal authority.

Children's personal information is subject to a further requirement. By children, I am talking about children under the age of 18 (a person is legally recognised as an adult, a major, when that person turns 18 - there are exceptions, though, relating to an incapacity or inability to manage the person's own affairs). The February 2011 draft of the Bill (the current draft as I type this) requires prior consent from a "competent person" before collecting and using a child's personal information. A "competent person" is defined as follows:

A “competent person”, for purposes of paragraph (a), means any person who is legally competent to consent to any action or decision being taken in respect of any matter concerning a child

The position with children is different to general personal information processing because it requires prior consent from that competent person (usually a parent or guardian). In practice this can be a little tricky to obtain for various reasons. The first reason is that, when it comes to the major social networks, its not clear that the Protection of Personal Information Bill applies to those social networks. That said, the provisions dealing with data transfers outside South Africa require that countries this personal information is transferred to subscribe to similar personal information protection principles in their laws.

Consumer Protection Act

The Consumer Protection Act highlights another reason obtaining consent from children for collection of their personal information is tricky. As I pointed out in my post "Why Website terms and conditions matter", a website's terms and conditions is a contract between the site's visitors and users and the site owner. This implies that the parties to this contract have the legal ability to enter into a contract in the first place (this is also known as "contractual capacity"). Section 39 of the Consumer Protection Act deals with this issue when it comes to children:

Agreements with persons lacking legal capacity

39. (1) An agreement to enter into a transaction, or for the supply of any goods or services, to or at the direction of a consumer—

(a) ...
(b) is voidable at the option of the consumer, if—

(i) at the time the agreement was made the consumer was an unemancipated minor;
(ii) the agreement was made without the consent of an adult responsible for that minor; and
(iii) the agreement has not been ratified by either—

(aa) an adult responsible for that minor; or
(bb) the consumer after being emancipated or becoming an adult.

(2) Subsection (1) does not apply to an agreement if the consumer, or any person acting on behalf of the consumer, directly or indirectly, by act or omission—

(a) induced the supplier to believe that the consumer had an unfettered legal capacity to contract; or
(b) attempted to obscure or suppress the fact that the consumer did not have an unfettered legal capacity to contract.

What this means is that a child can enter into a contract with a social network but the parent or guardian whose consent is necessary to ratify or confirm the contract can effectively void that contract. Bear in mind that the contract here probably includes a privacy policy in terms of which the child presumably confirmed that the "competent person" concerned had consented to the social network collecting the child's personal information. The risk to the social network is that the parent or guardian would decide to void the contract between the child and the social network and, effectively, negate the consent to the social network's collection of the child's personal information. This presents a practical challenge to social networks when it comes to applying contractual terms to children's access to their services and their collection of children's personal information.

Social networks

The major social networks and services like Facebook and Google's various services cater for children accessing their services. Facebook's protections are more robust than Google's in many respects. Facebook limits who can see children's Facebook activity. According to Facebook's Safety Centre –

The only people who can see what teenagers post are their Facebook friends, friends of friends and networks (like the school they attend). We maintain added protections and security settings for teenagers (aged 13-17) that ensure their profiles and posts don't show up in public search results. Similarly, if teenagers share their location through Places, only their Facebook friends can see it.

Parents should spend some time reading through the information provided in social networks' privacy information pages. Here are a couple that will probably be pretty relevant:

• Facebook's Safety Centre and Data Use Policy (nicely formatted and presented);
• Google's Family Safety Center;
• MXit's Guidelines for Parents.

General tips

Parents should acknowledge that their children are digital natives. Digital is an important part of their daily lives and will be increasingly important in almost all aspects of our daily lives, including the business environment. Trying to block access to this may not work, either for long or at all. Instead parents should engage with their children as much as possible about the services they are using and educate them about the very real risks of disclosing too much information about themselves.

While many parents are unfamiliar with the services their children are using, perhaps even intimidated by those services, they should make every effort to find out more. Often this means creating their own profiles on some of these services and "friending" their kids (even though this would probably mortify your teenagers) so you can keep an eye on what they are doing. That said, children can probably manipulate privacy settings to hide their activities so it falls to parents to learn as much as they possibly can about services like Facebook, Twitter, Google+ and Mxit and what these services' privacy practices are.

Parents are users too and they should bear in mind that their social activities can comprise their children's privacy. I wrote about this is a post titled "The privacy myth" a while ago (the post's main theme is that privacy as in secrecy is a myth online) –

There are two strategies which can help mitigate the effect of the Internet on personal privacy. The first is to proactively manage your identity online. This means using services like ClaimID to create coherent and comprehensive personal profiles online and taking steps to differentiate aspects of your personality from those that either have no link to you or which are misrepresentations or misuses of your identity.

Another simple, yet powerful, strategy is to decide in advance which items of your personal information will never be disclosed online, ever. This strategy depends on the principle that what you don't disclose can't be disseminated and misused. Examples of personal information never to disclose may include your identity number, your home address, your home phone number, your children's school and so on. Particularly sensitive personal information should be closely guarded from disclosure at all times and this requires vigilance.

The major social networks have improved their privacy practices quite a bit in the last few years. There is a common perception that Facebook is inherently insecure but its worth bearing in mind that children may be more at risk when they are out and about in public compared to when they are using Facebook with their privacy settings responsibly configured.

Protecting your children's privacy is not easy and it is more about controlling what is disclosed and how its used rather than keeping it hidden altogether. That said, it can be done but it require diligence and attentiveness.

Update: I have come across a couple sites dealing with children's safety online which may be informative:

• Parents' Corner (a South African site)
• SafeKids.com
• KidSMART

The trouble with online defamation

I frequently receive calls or emails from people asking for help with online defamation, usually on Facebook. The people who contact me are often at their wits' end and want to sue the people defaming them, thinking that will fix the problem. Unfortunately, that can often make it worse. The challenge with online defamation is that the usual legal approach can aggravate the harm being suffered and the better course of action doesn't necessarily fix anything. Dealing with online defamation is often a matter of damage control and this is primarily due to the social Web's nature.

Social networks like Facebook, Twitter and Google+ empower their users to express themselves on a scale typically not seen before the Web became social. This has shifted power dynamics in profound ways. We recently saw how Facebook and Twitter played important roles in the Arab Spring in Egypt and other countries in the Middle East. It is important that the social Web remain as free and accessible as possible because a free social Web is a powerful tool for freedom generally. At the same time, the social Web, like most tools, has darker applications and defamation online is one of those applications.

Of course, that is an oversimplification. A form of expression can be defamatory and be justifiable and permissible if, on its face, it harms its target's reputation and yet its publication serves a legitimate purpose. When people contact me about defamation online (the term they often use is "slander"), the published material is often not justifiable and is motivated by malice.

The typical legal response to this sort of defamatory material (or any defamatory material, for that matter) is to demand its removal and that the publisher take some form of remedial action to address the harm caused. The problem is that adopting this approach to defamatory statements or material published online can aggravate the situation far more than the person harmed could have anticipated.

Two case studies illustrate this phenomenon well. The first and older case study involves the performer, Barbara Streisand, and her efforts to stop photographs of her coastal home from being published after it was photographed during a coastal survey. Despite her most efforts, photographs of her house were published online, repeatedly. This case study gave the phenomenon its name: the Streisand Effect. A number of subsequent stories validated and reinforced the Streisand Effect including the 2007 Digg-AACS Encryption Key controversy and, more recently, the 2011 Ryan Giggs-UK "Superinjunction" controversy. Both of these more recent case studies illustrate the challenge of adopting a classic legal approach to a social Web problem. In the 2007 Digg controversy, Toshiba's attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept.

When it comes to defamation online, particularly on social networks like Facebook, defamatory statements' harmful impact may only be exacerbated by adopting a traditional legal approach. This isn't to say that the defamation isn't unjustifiable, harmful and actionable but the very real possibility that addressing this misconduct like a conventional legal problem could drastically inflame the situation, and the resulting harm, is an important consideration when planning a response. What is required is a more flexible approach having regard to the specific dynamics involved as well as the platform used. There is no single approach which will be appropriate for all cases.

So what can be done? From an organizational perspective, implementing an Online Reputation Management solution may make a lot of sense. Companies may be defamed too and this defamation frequently results in reputational harm. Simply monitoring keywords and phrases is part of the process which should also include a more detailed strategic plan for dealing with negative and positive sentiment as well as legal input throughout the process to anticipate and cater for potential legal issue which may arise. From an individual perspective, responses may include reporting abuse with the platform's proprietor; laying criminal charges; engaging directly; not taking any active steps for the time being and, when left with little choice, having an appropriately worded demand letter prepared and sent to the culprits.

There are other challenges facing online defamation cases which can be similarly difficult to overcome. One concern is that defamers may be publishing under a pseudonym and are effectively anonymous. This presents a fundamental difficulty because you can only really take action against a known party and if the culprit has used pseudonymous handles and names for his or her profiles, email addresses and other identifiers, suing will be a practical impossibility. Another, very real, concern is the cost of legal action relative to the harm suffered. In the case of individuals, litigation costs are frequently prohibitive; potential damages generally less than they may expect and costs recoveries are cold comfort after a protracted and expensive campaign. Costs are less of an issue for companies which tend to be more able to afford these costs but the challenge here is that taking action may lead to a disproportionate increase in the harm suffered making legal action more of a "principle" based decision which is rarely the ideal motivation for legal action.

A lawyer's role in these sorts of case is less to rush in, guns blazing, and more to get a handle on the situation and help shape responses while anticipating the worst and preparing as much as is possible for a formal dispute. In between there is usually considerable scope for a multi-faceted approach to defamation and the resulting reputational harm where lawyers still play a role. They're just not necessarily the cavalry anymore.

Regulators: Hands off the social Web

Two recent events have sparked debates about whether the social Web should be censored: the first is the recent civil unrest in London and the second is a recent report in the Sunday Times about a racist calling himself "Eugene Terrorblanche" publishing a deeply disturbing photo on Facebook (it turns out this is an old story but relevant nonetheless).

When faced with these sorts of social network abuses, its sometimes tempting to ask whether these social services are somehow inherently bad for allowing themselves to be abused like this. The short answer is "no" and that these services typically take action against the offending material or account where the use falls foul of their terms of service or is otherwise illegal. Facebook's Statement of Rights and Responsibilities contain the following use restrictions:

Safety

We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:

1. You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
2. You will not collect users' content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
9. You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
11. You will not do anything that could disable, overburden, or impair the proper working of Facebook, such as a denial of service attack.
12. You will not facilitate or encourage any violations of this Statement.
    

Twitter's Rules contain the following restrictions:

Content Boundaries and Use of Twitter

In order to provide the Twitter service and the ability to communicate and stay connected with others, there are some limitations on the type of content that can be published with Twitter. These limitations comply with legal requirements and make Twitter a better experience for all. We may need to change these rules from time to time and reserve the right to do so. Please check back here to see the latest.

• Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
• Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
• Privacy: You may not publish or post other people's private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
• Violence and Threats: You may not publish or post direct, specific threats of violence against others.
• Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
• Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
• Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile pictures, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

Google+'s content policy contains similar restrictions. The point is that these social services contain mechanisms in their terms of service which prohibit users from using their services of these sorts of uses and to remove the content in question or delete the user's profile where these rules are infringed.

Neutral tools and misinformed assumptions

Notwithstanding these infrastructural barriers to improper uses of these services, governments and regulatory bodies have raised the possibility of regulation of the social Web as a response to what they may regard as offensive or inappropriate use of these social services. In the United Kingdom, the British government mooted the possibility of restricting access to social services like Twitter, Facebook and Blackberry's messaging services which were apparently used by rioters to co-ordinate their activities. The challenge with Blackberry's services, in particular, is they are purportedly encrypted and that has frustrated numerous governments seeking to spy on their Blackberry-using citizens. The desire to censor or restrict these services because they may have been used by criminal elements in the United Kingdom is short-sighted and doesn't take into account the beneficial uses of these services.

The Guardian published results of a study of Twitter usage during the London riots recently. Not surprisingly, the study's findings revealed that the perception of these social services primarily as tools for criminals was overstated.

Analysis of more than 2.5m Twitter messages relating to the riots in England has cast doubt on the rationale behind government proposals to ban people from social networks or shut down their websites in times of civil unrest.

A preliminary study of a database of riot-related tweets, compiled by the Guardian, appears to show Twitter was mainly used to react to riots and looting.

Timing trends drawn from the data question the assumption that Twitter played a widespread role in inciting the violence in advance, an accusation also levelled at the rival social networks Facebook and BlackBerry Messenger.

The study revealed that Twitter, for example, was used to organize responses to the rioting and to co-ordinate a clean-up. In other words, the victims of the violence used Twitter to organize themselves and a response to the same criminal activity which similarly relied on these services to propagate. Restricting access to these services may stifle criminal activity but it may also stifle beneficial uses of the services.

Locally, the Sunday Times article sparked various debates about the disturbing photo of the apparent right winger. One of the debates focused on how the photo and the story first broke in 2008 and was hardly the news the Sunday Times portrayed it as. The Sunday Times came under criticism for making much of an old story and yet these critics have glossed over two serious issues: the photo was still available on Facebook 3 years after it was first noticed by the media and the photo still depicts a very disturbing image of a white man enthusiastically posing over the apparent body of a black boy with his rifle as if the white man hunted him. Irrespective of whether the photo is real or a fabrication, the message the photograph should most certainly concern us for various reasons. It touches on old racial tensions which are very much alive and well 17 years after South Africa adopted a broad democracy based on fundamental rights such as equality and dignity.

The photograph also suggests that these same racial tensions are not just the domain of an older generation but have been handed down to a younger generation on both sides of the growing racial divide. We see it in this photograph and we see it in Julius Malema's rhetoric. These are some of the real issues we should be concerned about, not which publication published the story first or whether the photograph may have been fabricated (if the photograph is an accurate portrayal of what it appears to portray, it is an even more graphic illustration of these issues).

Regulation and censorship

Another debate which this story's renewed publicity has sparked is a similar one to the debate underway in the United Kingdom: should the social Web be regulated, censored, to address improper uses of these services? The chairperson of the South African Human Rights Commission, Lawrence Mushwana, recently released a statement suggesting that the social Web should be regulated. According to the Citizen, reporting on this –

Mushwana said even though there was no doubt that social networking sites played an important role in promoting the right of freedom of expression it was clear that practical ways should be found to ensure they were used appropriately.

One of the issues raised was individuals' ability to hide behind pseudonyms and relatively untraceable profiles and post offensive material or even conduct criminal activity using these social services (social services like Google+ and Facebook take a firm stand against pseudonyms and this has proven to be controversial). The SAHRC has apparently had to close numerous files because people suspected of human rights abuses have been unable to locate and hold accountable. One stark example of this is the young man depicted in the photograph the Sunday Times published. While that is certainly a concern, it is also important to point out that the call for assistance in identifying this individual was made, in part, using the social Web. The link to the article was published on the Sunday Times website and was disseminated using Twitter and Facebook links alongside the article almost 800 times on Twitter and over 3000 times as I write this. These numbers don't take into account how often the story's link was shared on Twitter and Facebook directly or even on other social services ranging from email to the relative newcomer, Google Plus.

Mushwana's chilling call for regulation ignores the fact that the law in South Africa already prohibits incitements to violence and hate speech, to name two features of these two stories. The right to freedom of expression specifically excludes its application to incitement to violence and hate speech. Criminal activities co-ordinated through social services, the phone or word of mouth are equally illegal and punishable. I also believe that just as with content piracy, criminals intent on abusing social services to further their criminal activities will find other ways to do this if current channels are simply cut off. What happens then is that the very people who would otherwise be empowered by these social services to resist our society's harmful elements will be deprived of an accessible, powerful and effective set of tools. What governments and regulators should rather do is find better ways to make use of these services to harness crowd wisdom to monitor and combat the social Web's abusers. One example of where British police have started doing this is publishing surveillance photos of the looters to Flickr and asking citizens to identify them so the police could arrest the suspected looters.

Legally speaking, there may be compelling grounds to argue that depriving citizens of the use of these social services may unreasonably infringe citizens' rights to dignity, freedom of association, not to mention the right to freedom of expression. We have a fairly robust recognition for the value of these rights in our constitutional jurisprudence and limiting the scope of our rights is not a small matter. The Constitutional Court in the matter of S v Mamabolo (E TV and Others Intervening) stated the following:

Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

In policy terms, the question how far this sort of regulation goes also arises. Censoring criminals using social services is a relatively easy choice but what happens when the people using these services are legitimately protesting an unpopular government or policies designed to erode human rights. We have seen several examples of the former in the Middle East and north Africa this year and examples of the latter here in South Africa when the government introduced legislation which would substantially erode freedom of the press, for instance.

The law is developed enough to deal with these sorts of issues even as the tools used to commit these misdeeds become more widespread and versatile. The social Web introduced us to a new paradigm but that paradigm doesn't just apply to marketing initiatives, the social Web amplifies social conventions and empowers previously disadvantaged people who lacked the means to express their voices. The social Web is not inherently good or bad and regulatory frameworks exist alongside contractual frameworks established by these social services to recognise and combat abuses like hate speech and incitements to violence. What governments and regulators are forced to contend with is a fundamental shift of the power dynamics between them and citizens but those shifts can have profoundly beneficial implications for the same citizens those regulators seek to protect. Where citizens find themselves subject to tyranny, they have resorted to these tools to combat that tyranny. As the old adage goes:

Guns don't kill people, people kill people.

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Photo credits:

• Riots in Greece (Dec 2008) Tear Gas by agelakis, licensed CC BY-NC-SA 2.0
• Riot Squad by daveblume, licensed CC BY-NC-ND 2.0