When does posting become publishing?

A news story made it onto the news wires yesterday, that illustrates one of the coming tensions in online communication — a real estate company is suing one of their tenants, who complained about the company on Twitter.

The case illustrates a tension that I expect to become ever-sharper in the next few years, between “conversation” and “publishing”.  Defamation suits are probably where the problem becomes most stark.

Say that I post something defamatory to my blog, which in this happy hypothetical universe has a hundred thousand readers.  As I understand it, it’s becoming fairly clear that the law thinks of that as “publishing”, and I’m just as legally liable as I would be if I published in a local newspaper.

Say that I say the same thing in a locked post on my LJ, visible only to my friends.  This is clearly a private conversation, not “published”.  It’s hard to predict the courts, but I find it unlikely that one would find this a matter worthy of a lawsuit, and I’d argue strongly that it shouldn’t.

Now, take the case at hand.  The post in question was to Twitter.  The woman reportedly only had 20 followers, and probably thought of this as a private conversation.  Indeed, a lot of people are laughing at the realty company, for turning a mountain into a molehill.  But their contention is that this was published to the public, and that’s kind of true: Twitter is a global feed, and lots of people mine it quite randomly.  So at least technically, it kind of was “publishing”.

So how do we draw the lines?  In an age where “conversations” can be visible to the whole web, and posts are just part of the larger conversation, what is publishing?  How can the courts distinguish between libel and simply someone spouting off to their friends?  It’s not a trivial matter — while the difference might be obvious at the gut level to you and me, the law likes clear lines, and I’m not seeing many of them.

I don’t have answers here, but I welcome thoughts on the matter.  It’s a problem that is likely to feed back into the technology and social conventions of online conversation — potential lawsuits are good for chilling free expression, so these lines really matter in practice…

Conversational Feedback

I’d like to spin off of a recent conversation over in dsr’s journal.  He pointed out that non-realtime online conversations suffer badly in terms of feedback: when you do something inappropriate, it takes a while to get feedback, and once the feedback does come, it tends to be in the form of a tsunami.  Siderea then pointed out some of the failings of text as a form of feedback in general, compared with face-to-face.

Okay, so let’s explore that a bit.  What could we provide to make feedback more effective?  To put it more specifically, what might CommYou do to provide good tools for social feedback?  It is probably impossible to make online feedback as effective as the face-to-face kind, but can we make it better than it usually is?

Let’s look at a few of the common problems:

• Text tends to have a different subject than face-to-face indications.  When someone does something inappropriate in person, I indicate *my* discomfort, and leave it to empathy to provide the feedback.  Textually, the point tends to be “You did something wrong”, which is a much sharper and more direct criticism.
• Text is often too blunt and explicit — it’s hard to say that someone has been inappropriate without stepping on social taboos and being rude yourself.
• In non-realtime conversations, when someone says something inflammatory, it tends to produce a response of “I Must Respond!” in all the readers.  Even if I know there are a lot of responses, which might already take this person to task, the desire to say something can be overwhelming.  By contrast, in a real face-to-face situation, everyone might start shouting at once, but it usually quickly dies down to one person making the point first and everyone else hearing it; this cuts down somewhat on the dog-pile effect.

So the question is, can we improve on this?  I have a few off-the-cuff ideas, but I don’t know if any of them are reasonable.  For instance:

• Provide built-in concepts for emotional expression that are subtler than text.  Shadings of color are potentially expressive, but not universal — they’d probably require social convention to have any effect. (Emoticons are essentially an attempt at this, and illustrate how hard the problem can be — they are often badly misused.)
• Roll up these expressions onto the message being reacted to, possibly as a single cumulative effect, to reduce the verbal onslaught.  (Slashdot kind of does this in its karma system.)
• Distinguish between “near-real-time” and “later” in conversation; (subtly?) discourage this sort of emotional feedback more as things go along, to avoid the syndrome of people beating the dead horse.

Of course, these are still in tension with the problem of “I” vs “You” — done naively, these still come across as “you did something wrong”, since they adhere to the posted message, whereas the ideal would seem to have a connotation of “I’m uncomfortable” instead.  I’m not sure how to express that notion of discomfort in a way that is as subtle but effective as facial expressions in real conversation. The heart of the problem is that (especially in non-realtime conversation) the rest of the audience doesn’t have a good way to provide the sort of ambient feedback they do face-to-face.

Ideas?  I think this is a terribly interesting problem, and I suspect there are a bunch of experiments worth trying. (Note that dsr has a couple of good ones in the linked conversation — I’m especially intrigued by the general notion of participants being able to add what amounts to typed metadata.)