Libel and Discourse in the Digital Age

Posted on by ftrotter

Libel, like copyright, is one of the central legal frameworks for governing online activities. It sets the bounds for what can and cannot be said about people in the new media area.  Like copyright law, libel law is a legal framework designed in a pre-digital era, that is somewhat strained in this new digital media age.

I write this with some trepidation. This blog posts touches on gender issues on Twitter, and that is a heated and, at least on Twitter, mostly broken discussion.

Any discussion on sensitive issues online, especially on Twitter, can devolve into a core of reasonable people trying to have reasonable discussions that are surrounded by a much larger group of people (or at least a large number of twitter accounts) who say completely ridiculous and incendiary things. Jimmy Wales response to a GamerGate email regarding the policies for Wikipedia’s GamerGate article is required reading here.

The wonderful thing about Twitter is that it facilitates open to the public conversations about anything at all. These conversations usually involve only people who are genuinely interested in particular topic, which means that the Twitter conversation is usually representative of the topic as it exists in the real world. But a given hashtag is useful and productive, only to the degree that people all agree on what the topic under discussion is, and also fundamentally agree on what is the appropriate means to have that conversation.

Many times, both of those constraints fail, and this is when you get a single hashtag, like #GamerGate being used in at multiple conflicting ways. One way is to have a discussion about “Ethics in Game Journalism”, the second is to launch a coordinated attack on female game journalists and other feminists, and the third is the feminist community using the hashtag to refer to those attacks. In the sense that all three things are happening at once using the same hashtag on Twitter, all of them are equally valid and equally invalid uses of the hashtag. But all three discussions regularly lament that the other two discussions are trying to “redefine” what “GamerGate” “is”. The letter from Jimmy Wales helped me realize that there is an inherent difference between a movement and a hashtag. Before reading that I was deeply confused on how think about “GamerGate” a word whose definition changes dramatically depending on who you listen to.

Generally I think the power of Twitter lies in its capacity to have public conversations that serve only as “signals”, with larger discussions on topics left to more forums that are better suited for comprehensive discussion, like blogs. Twitter is ill-designed to handle contentious issues, in part because Tweets are necessarily atomic in nature. It is too easy to take a single tweet, and then lambast that single tweet as the entirety of someones position. This is not strictly a straw-man tactic because it actually takes a little work to get Twitter to contextualize any discussion. Twitter presents tweets as atoms, and not threads on a topic.

On Twitter, there is a lot of “What I said was X, but what I meant was Y”. As an informaticist, I would call Twitter something like a “Communication Platform with Low Semantic Fidelity”. Which is not an insult to the platform… this is both a “feature” and a “bug”, depending.

So it is with great irony that I found myself having a discussion about libel, on the very platform that makes the issues around libel so complex.

For those who have been living under a rock on Twitter lately there has been a drama unfolding regarding the role Vivek Wadhwa plays regarding women’s gender issues in technology. The play continues to unfold, but here is the outline of the opening scenes:

  • Wadwha makes a statement onstage referring to “floozies”. (have not been able to find video of this)
  • Mary Trigani writes a post entitled Captains and Floozies criticizing Wadwha’s comment.
  • Wadwha comments on the blog post.
  • Trigani reposts the Wadwha’s comment with the title Vivek Wadwha explains
  • Amelia Green Hall, writes QUIET, LADIES. @WADHWA IS SPEAKING NOW which sternly criticized the role that Wadhwa plays and how he plays it.
  • This blog post caused enough of a stir that Amelia was subsequently interviewed by Meredith Haggerty on NPR’s TLDR series. This podcast (which is still available here) is essentially a retelling of Amelia’s blog post in audio form, with no dissenting voice from Wadhwa or elsewhere.
  • Wadwha reacts on twitter saying that the podcast is “libel and slander“
  • NPR removes the podcast from their page, although as per normal it will be remembered forever on the Internet somewhere…
  • Twitter presumes that the post was removed because of Wadhwa’s “threats”
  • Wadhwa insists that he wants the post itself restored, but merely wants to have the opportunity to blog in the same space.
  • Apparently, his interactions with NPR makes him believe that he will be able to publish a retort on the NPR site.
  • For whatever reason, Wadhwa’s defense is not published on NPR, so he manages for it to be published on Venture Beat instead.

Which brings us to current. (I will try and update the timeline if things change)

Obviously it’s interesting stuff in it’s own right, but I am mostly interested in the issues around libel. Specifically, I am interested to understand if it was in fact libel, and I am interested to know if the fact that Wadhwa labeling it as libel was a “threat”.

Lets deal with the first issue. Was it libel? Well it turns out that this is not a clear legal question, especially for Wadhwa. You see in the US, the legal test for libel typically has three components (IANAL and I am quoting Wikipedia, so you would be foolish to take this a legal advice).

  • statement was false,
  • caused harm,
  • and was made without adequate research into the truthfulness of the statement.

(from wikipedia)

Unless, you are a public figure, and then libel also includes “Proving Malice”. Again quoting wikipedia:

For a celebrity or a public official, the person must prove the first three steps and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as “proving malice”

Listening to the podcast there are several statements that stand out specifically as false:

  • ..”Has he really been this spokesman for women in tech for years while he is believing that women can’t be nerds because thats because thats like super misogynist”..
  • (on the website of for Wadhwa’s book) “I can get to a photo grid of women it doesn’t list their names..” (Wadhwa points out that such a list lives here)
  • “Wadwha was barely acknowledging the women he was working with”
  • Wadwha was “Gaslighting minimizing marginalizing people who disagree with (him)”
  • The story implies that Wadwha titled his response to Trigani’s post “Vivek Wadwha explains” when in fact Trigani had made that title.
  • The DM’s that Wadwha sent were “non-censual”.

If you listen the to podcast, and you read Wadwha’s rebuttal, it is pretty easy to see understand how Wadwha at least would view these statements as false, harmful, and inadequately researched. Wadwha is painted as pretender, a person who who is taking the role of “real” expertise. The implication here is that there is something essential to the experience of being a women in technology that is required to acquire legitimate expertise about women in tech. At the same time, there is the implication that the experiences of women in tech so vastly distinct that no one person could possibly make useful statements about them as a class.

This is an interesting issue with civil rights in general. There was a time when the racial civil rights movement choose to exclude white supporters from leadership positions. This makes sense when you are dealing with a pervasive attitude that presumes that a particular class is fundamentally incapable of self-representing and/or leadership.

But there is a difference between requesting that someone bow out of a leadership role, in order to further the aims of a social justice movement, and attacking the qualifications and intentions of that same person in the most public way possible (i.e. on the radio and Internet at the same time).

On the other hand, if there is a person claiming leadership in a social movement, while saying or doing things that hamper that movement, it is a natural reaction to eventually (after back channel discussions have failed) to out that person in public.

So which is it? Is this a necessary exposer in defense of an important social movement, or it is petty dramatics within a movement that should be above such theatrics?

What the hell do I know? Although I am at least a little interested in anything that qualifies as social justice, I am hardly an expert in this area. I don’t know any of the parties involved and I have no familiarity with the book and research body in question.

What I am interested is how libel works in the Internet age. What is fascinating specifically to me is the degree to which Wadwha is being criticized for calling the podcast “libel”. It is fairly clear to me that IF the contents of the podcast are misrepresentations, then Wadwha is just being publicly attacked. The whole podcast was about him, not about “men speaking for women generally”, but just about him and what he was specifically doing wrong. The podcast implied that he was a lecherous, misogynist, manipulative plagiarist. IF those things are not true about him… then does he have the right to say “This thing that is happening is slander and libel” without inappropriately using that language to squelch criticism.

According to Wadwha, he has made no legal threat, he did not ask for the article to be taken down and, in fact, he has asked for it to be restored. That does not generally sound like the acts of someone who is seeking to muzzle critics.

What I find fascinating, is the apparent consensus that merely labeling the podcast as libel IS itself a legal threat.

Here are some reactions from two lawyers who work for the EFF (an organization I admire and donate to)

https://twitter.com/ncardozo/status/567028837527998464

https://twitter.com/ncardozo/status/567039756618313728

https://twitter.com/ncardozo/status/567160171613282304

And then here..

Lastly this is one specific quote from someone who has been on the other side of this.

However, I did find this gem from @DanielleMorrill, who was obviously researching this earlier than I was. She found places where Wikipedia policies cover these issues…

https://twitter.com/DanielleMorrill/status/566731111259062274

https://twitter.com/DanielleMorrill/status/566732078444974081

For my part, I cannot help to empathize with Wadwha. My family has had some pretty nasty run ins with people willing to publish false things about us. If someone in traditional media decides to smear you, its nearly impossible to undo the damage. At least Wadwha had the opportunity to tell his side of the story, an opportunity my family never got. 

Apparently, the consensus on the Internet, and what I would advise people do on this, is to just say. “Hey that stuff you wrote/said about me is not true, and its pretty hurtful and you really should have researched that better” instead of actually coming out and saying “Thats Libel”. Its pretty clear that Wadwha tried to take a position of “You have libeled me, but I am not planning on suing you, I just want to achieve balance”, and from what I can tell, that has blown up in his face, and possibly made things worse for him. 

I have certainly learned several things from this incident that will make me slightly less likely to put my foot in my mouth: Specifically…

  • I should be careful not to speak over other people on panels. I am frequently the most vocal and opinionated person on a panel. Audiences frequently ask questions specifically to/for me, and moderators will frequently favor me because I can be entertaining. But apparently when Wadwha does the same thing he is percieved as “taking the air out of the room” etc etc. I would never want my fellow panelists to feel they don’t have a voice b/c of me. I will have to work on that.
  • Apparently there is a whole contingent of women who have been so completely harassed by DM’s that saying something like “A non-consensual DM” actually makes sense to them. I had no idea that Twitter harassment had reached that level for women. I mean you have be brave or crazy to let someone know you are a female user on Reddit (which is sad), but I thought Twitter was a “safe place”. I was wrong.
  • When someone labels themselves as rude or mean or otherwise thinks that it is a good idea explicitly admit in their twitter profile that they are difficult to deal with… believe them. They are not kidding. Its one of these things. Lookup the Far Side cartoon that says: How Nature says “Do not touch”. Its just like that.
  • I need to be careful to explicitly not speak “for” the people I personally advocate for (which in my case is usually patients) b/c this can be disempowering. I need to find ways to advocate without being presumptuous, which is harder than it sounds.

Thanks for reading, I may well update this post based on reactions from Twitter and elsewhere.

-FT