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January 19, 2004

Ethics for the Web? Lean Don’t Lie

Filed under: pre-06-2006 — David Giacalone @ 4:27 pm


 dunptruck  download this?


John Mudd posted a Code of Conduct/Ethics for Webloggers last week at Blogcritics.org, which stimulated considerable (if not always edifying) discussion.  I confess that I have no interest in post-adolescent angsting over the etiquette of flaming.   As The Sassy Lawyer, Justin at BlogBook.org, and Alison Hawke at Quantum Tea, suggest, name-calling is silly and boring, and not a serious enterprise for adults, or serious topic for rulemaking.

 

Similarly, I have little patience for webloggers who (1) are scandalized and insulted every time someone suggests that we have anything to learn from professional “mainstream” journalists about ethical reporting standards; or (2) can only repeat the mantra that “what the Web is all about” is having no rules.  Of course, webjournalists can choose not to follow ethical guidelines suggested by others.   But, they shouldn’t be upset or in insult mode because others want to have a Code in order to foster credibility for their own weblog or circle of weblogs.   As we’ve said here before, there is no reason to expect weblogs to have higher quality in general than any other form of mass communication.  It takes effort to produce quality and to find it on the web.

 

The web ethics issue that interests me the most in Mudd’s Code is No. One: 


1) Misinformation and/or false information shall not be published or permitted in the blogosphere.

The topic has been on my mind, because of the recent intense focus on politics on the web and in all media.  Of course, I do not support the use of false information in any form of journalism or punditry that is not clearly meant to be satire.  But, it seems to me that publishing deliberately or recklessly misleading information is also unethical.


GeoWash   Here’s my personal belief on misinformation:  Whether done by my allies or opponents, by those who agree with me or who disagree, I strongly dislike and do not approve of the use of misleading information to support or oppose any candidate, party or issue.   To intentionally mislead, deceive or give the wrong impression — by giving false information or by deliberately omitting important information — is lying.   Similarly, it is irresponsible and unethical to make a conclusion and argument when you know, but do not disclose, that you do not have all the material facts (e.g., calling a man a bigamist because he’s been married two times, without checking to see if he had been widowed or divorced prior to the second marriage). 

FactCheck.org provides a very helpful service regarding statements and ads by national parties and figures.  [See its reports, e.g., on Gephardt ads quoting Dean out of context on Medicare; Dean consistently understating the value of tax reductions received under the Bush tax cuts; GOP claims that the income of most Americans increased in 2002.]   Nobody’s checking webloggers, however.   Even if such a truth patrol existed for the Web, or a site has a Comment function that allows readers to make corrections, I’m not interested in reading a weblog that intentionally uses false or misleading statements — even if we were ideological and political soulmates.

 

This is not a call for perfection and omniscience before posting (which worries The Sassy Lawyer in her thougtful commentary).  I’m talking about deliberate or reckless disregard of the truth in the service of a cause or candidate, or while purporting to be a source of useful news or expertise. 

 

wrong way  It is, however, a direct rejection of the position take by Justin at Blogbook (on its ethics page!), where he asserts that


“[M]isinformation is the sophist’s ball peen hammer. If facts won’t win your client’s case, perhaps smoke and mirrors will do. If the White House can use misinformation, so can anyone who writes a weblog.”

I’m glad Justin has been so honest about being willing to be dishonest — now I’ll know to avoid his commentary or give it little credence. [See his response by clicking here].  But, the position that “we can mislead because they do” is neither admirable nor tenable, if credibility and broader readership is a goal.  More appropriate is Jadester‘s suggestion at the original Blogcritics” title=”http://www.abanet.org/cpr/mrpc/rule_8_4.html\”>Blogcritics” target=”_blank”>http://www.abanet.org/cpr/mrpc/rule_8_4…. posting, that  



“In all articles, a distinction must be made between actual rock-solid information, and rumour/opinions.. . .  It is not as difficult as it may at first seem to ensure you make the distinction; most newspaper articles are in fact written this way, albeit tailored to suggest in the reader’s mind the writer’s opinion.”


(I also like Jadester’s suggestion that Bloggers should make clear their usual political leaning somewhere on their own blogpage, preferably the front page,” on with a link to “statement of political leaning,” which is why I prominently display my “leaning” toward client/consumer rights.) 


trashman 


The standard that I’m suggesting should not be the least bit difficult for a lawyer to follow in writing a weblog (although it might require some will power).    Legal education is primarily about learning to discern which facts and factors are important, material, relevant, etc.  Furthermore, both the Model Rules and the Code of Ethics prohibit misleading and deceptive advocacy (and conduct) in many situations.    


There’s Model Rule 8.4 Misconduct (“It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation”), with its Code cognate at DR 1-102(A.4).  Also, Model Rule 4.1 requires Truthfulness in Statements to Others in representing a client, what are certainly analogous to advocating a cause, ideology or candidate.  Comment One to Rule 4.1 explains (emphasis added):



A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. 


Comment Two to Model Rule 3.3 on Candor Toward the Tribunal also presents analogous guidance on the ethical limits to advocacy:



This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.


[Also, see DR7-106 from the professional Code, concerning a lawyer’s duties to the tribunal (including disclosure of  “Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.”)]


Webloggers (especially lawyers) who feel they owe less of a duty of honesty to readers than a lawyer does to a court, should please do us the courtesy of stating that policy clearly and prominently on their homepages.


By coincidence, there was a lead editorial two days ago in the Albany (NY) Times Union (“Best papers are fair and honest,” 01-17-04 , availabe free for 7 days), that is highly relevant to this discussion.   After explaining that American newspaper were once highly and openly slanted, like British newspapers are now and always have been, editor Rex Smith states (emphasis added):  



“One factor behind the mid-[20th]-century trend toward straight news was the death of competing papers, leaving most communities with only one local newspaper. Publishers soon discovered that credibility appealed to a wider audience than predictable bias. And as the ranks of newsrooms filled with better-trained journalists, an ethic of independence took hold.

“Yet there is a recent movement in American journalism — still small, but undoubtedly present — toward the British model of unblushing bias.  . . .

“And at least in political news, Americans are increasingly concerned about biased coverage. Only 38 percent of the people who responded to a recent poll by the Pew Research Center said the campaign coverage they had followed wasn’t biased. That number has fallen steadily since 1988, when 62 percent said coverage was not biased.

“Those who want their news straight ought to be wary. Americans deserve fair and honest reporting, and the appearance of Brit-style journalism can only divide us into competing camps of people who know the news only from their own biased point of view.”


I hope that Smith is correct and that credibility appeals to a wider audience than predictable (or hidden) bias.  We can’t be an intelligent populace or electorate if the facts we get are filtered first to suit the preferences of the reporter or editor.  There is no problem at all with the author of a weblog having a particular partisan or ideological leaning.  Like print-media columnists, or lawyers advocating for clients, webjournalists have the right to present their case with persuasive force.  But, leaning and misleading or two very different practices, and the latter is unethical.  Each weblogger may have the right to be unethical, but I’m sticking to the corner of our cyberspace where facts are more important than factions.

10 Comments

  1. Thank you for your thoughtful piece. However, let me make a few points about your treatment.

    While my (admittedly at times flip) article was posted under the Ethics heading, please know that I do not advocate any misinformation on the order of a Model Rule 4.1 violation.

    I was attempting to underscore how internet phenomenon such as flame wars were by nature incapable of being regulated. Indeed, I point out the futility of the “if they can do it, we can do it” logic two paragraphs later where I state that

    [t]he better version of this rule would be “Do Not Flame.” Telling someone that they should expect to be flamed in return means it is open season for authors to stoop to that level once they have been flamed. For me, the practice of law has always meant taking the higher ground. Those in practice know that it is not always easy, especially considering the obligations to your client.

    Your invocation of my text was convenient to set up the following statement: “I’m glad Justin has been so honest about being willing to be dishonest — now I’ll know to avoid his commentary or give it little credence.” That seems unfair, considering what else I had written. One could go on to read my entire posting, and be rewarded by understanding that my sarcastic double talk was a way to make a point about the absurdity of the earlier text. Indeed, the tone of the later text is entirely different: frank instead of flip. Or they could take your quoted text at face value and reach the conclusion you have provided.

    So, then, was this misinformation on your part? Certainly no more so than using only the most forceful arguments from a split opinion.

    And is this therefore a flame war? Surely no more than a Scalia dissent.

    Comment by Justin — January 19, 2004 @ 5:25 pm

  2. Thank you for your thoughtful piece. However, let me make a few points about your treatment.

    While my (admittedly at times flip) article was posted under the Ethics heading, please know that I do not advocate any misinformation on the order of a Model Rule 4.1 violation.

    I was attempting to underscore how internet phenomenon such as flame wars were by nature incapable of being regulated. Indeed, I point out the futility of the “if they can do it, we can do it” logic two paragraphs later where I state that

    [t]he better version of this rule would be “Do Not Flame.” Telling someone that they should expect to be flamed in return means it is open season for authors to stoop to that level once they have been flamed. For me, the practice of law has always meant taking the higher ground. Those in practice know that it is not always easy, especially considering the obligations to your client.

    Your invocation of my text was convenient to set up the following statement: “I’m glad Justin has been so honest about being willing to be dishonest — now I’ll know to avoid his commentary or give it little credence.” That seems unfair, considering what else I had written. One could go on to read my entire posting, and be rewarded by understanding that my sarcastic double talk was a way to make a point about the absurdity of the earlier text. Indeed, the tone of the later text is entirely different: frank instead of flip. Or they could take your quoted text at face value and reach the conclusion you have provided.

    So, then, was this misinformation on your part? Certainly no more so than using only the most forceful arguments from a split opinion.

    And is this therefore a flame war? Surely no more than a Scalia dissent.

    Comment by Justin — January 19, 2004 @ 5:25 pm

  3. Methinks the lad doth protest too much. Some of Mudd’s suggested rules were muddy and not well worded, but #1 is simple and clear –post nothing false or misleading. There’s nothing absurd about that rule. Your reply was also clear, that being misleading is fine in a weblog. The fact that ridicule other sections from Mudd’s Code does not make my characterization misleading.
    Saying that flaming is no excuse for flaming back hardly affects your opinion about using deception. Being willing to be rude is a lot different than being willing to lie. Also, using forceful and selective arguments is quite different than covering up important facts.
    Perhaps you need to stifle your glee while flaming someone long enough to say what you mean on important issues. I’ll let our readers decide for themselves whether I’ve been mis-characterized your stance on deception, after they read your Comment, your original statement, and my posting.

    Comment by David Giacalone — January 19, 2004 @ 6:16 pm

  4. Methinks the lad doth protest too much. Some of Mudd’s suggested rules were muddy and not well worded, but #1 is simple and clear –post nothing false or misleading. There’s nothing absurd about that rule. Your reply was also clear, that being misleading is fine in a weblog. The fact that ridicule other sections from Mudd’s Code does not make my characterization misleading.
    Saying that flaming is no excuse for flaming back hardly affects your opinion about using deception. Being willing to be rude is a lot different than being willing to lie. Also, using forceful and selective arguments is quite different than covering up important facts.
    Perhaps you need to stifle your glee while flaming someone long enough to say what you mean on important issues. I’ll let our readers decide for themselves whether I’ve been mis-characterized your stance on deception, after they read your Comment, your original statement, and my posting.

    Comment by David Giacalone — January 19, 2004 @ 6:16 pm

  5. Truthfulness or falseness have a better chance of being sorted out, but “misleading” relies a good deal on how willing one is to be misled.

    While I concede that the “let not flaming beget flaming” argument does not do well to reverse the notion that “misleading folks is acceptable,” it does negate the “we can mislead because they do,” which you found “neither admirable nor tenable.”

    As far as stifling my glee “while flaming someone long enough to say what [I] mean on important issues,” my article was meant to be a light treatment of the original blogcritics post. Sometimes, in writing, authors use facially absurd arguments in understated tones. It’s called “sarcasm,” a subset of “irony.”

    Comment by Justin — January 19, 2004 @ 7:40 pm

  6. Truthfulness or falseness have a better chance of being sorted out, but “misleading” relies a good deal on how willing one is to be misled.

    While I concede that the “let not flaming beget flaming” argument does not do well to reverse the notion that “misleading folks is acceptable,” it does negate the “we can mislead because they do,” which you found “neither admirable nor tenable.”

    As far as stifling my glee “while flaming someone long enough to say what [I] mean on important issues,” my article was meant to be a light treatment of the original blogcritics post. Sometimes, in writing, authors use facially absurd arguments in understated tones. It’s called “sarcasm,” a subset of “irony.”

    Comment by Justin — January 19, 2004 @ 7:40 pm

  7. My mom taught me that there are two kinds of lies: active and passive. Active lying is one consciously makes a statement known to him to be untrue. Passive lying is when, knowing the truth, one chooses to keep silent and thereby, allowing the falsehood to ba taken as truth.

    Growing up, I learned that there is another kind of lie. Half-lies (or half-truths) that present a fact in an altogether different context.

    All three, when done knowingly–for whatever reasons–are falsehoods. All three, when done knowingly AND with intent to mislead constitute giving false information and/or misinformation. Intent can only be inferred from previous or concurrent acts and words.

    Legal ethics aside (there are more blogs than blawgs and I’m sure you’ll agree that it will not be fair to impose legal ethics on non-lawyers), there has to be a fair standard (in weblogging) to establish whether a false statement was written with prior knowledge of its falsity AND with the intent to mislead.

    Comment by The Sassy Lawyer — January 22, 2004 @ 6:50 pm

  8. My mom taught me that there are two kinds of lies: active and passive. Active lying is one consciously makes a statement known to him to be untrue. Passive lying is when, knowing the truth, one chooses to keep silent and thereby, allowing the falsehood to ba taken as truth.

    Growing up, I learned that there is another kind of lie. Half-lies (or half-truths) that present a fact in an altogether different context.

    All three, when done knowingly–for whatever reasons–are falsehoods. All three, when done knowingly AND with intent to mislead constitute giving false information and/or misinformation. Intent can only be inferred from previous or concurrent acts and words.

    Legal ethics aside (there are more blogs than blawgs and I’m sure you’ll agree that it will not be fair to impose legal ethics on non-lawyers), there has to be a fair standard (in weblogging) to establish whether a false statement was written with prior knowledge of its falsity AND with the intent to mislead.

    Comment by The Sassy Lawyer — January 22, 2004 @ 6:50 pm

  9. You may be Sassy, but you have seriously helpful ideas to share, Connie. Thanks for commenting.

    I like your breakdown of active lies, passive lies and half-truths. I think that active lies and half-truth are by definition done with intent to mislead, unless the audience is aware that the statement is intended to be satire or irony. Even passive lies become intentional deception when the passive-liar has a responsibility to speak out, knows that others are relying on him or her as a guide on the issue, or holds herself out as an expert or authority.

    The context in which the untruth is made, or the failure to correct the misinformation, will often be rather good evidence as to whether there has been an intention to deceive. I don’t know how we could ever come up with a way to “establish” prior knowledge of the falsity, as well as intent to mislead, in any particular case. But, I’m also not suggesting that anyone set up a machinery to do so. Each webjournalist should be policing himself or herself and raising issues of truth when they arise at other websites. If you are advising that we be slow to call someone else a liar (as opposed to saying the weblogger got the facts wrong and asking for an explanation or retraction), I agree.

    As for applying legal ethics standards to non-lawyers: It’s my opinion that, at least in the American legal system, the Model Rules and Code of Ethics are lowest-common-denominator rules — so low as to almost be an insult to the concept of fiduciary and professional duty. Asking others to live up to the lawyer’s code for candor is not aiming very high or asking very much. As I say in the main posting, webloggers are not expected to be impartial and may forcefully argue their cause. If a weblogger doesn’t know which facts are important (material) when drawing a conclusion or making an argument, she or he ought to stay out of the pundit biz and stick to personal diaries. I spent so much time pointing out to lawyers that they should be able to avoid intentional deception, because they often seem to be the most in need of tutoring on the subject.

    Comment by David Giacalone — January 22, 2004 @ 9:41 pm

  10. You may be Sassy, but you have seriously helpful ideas to share, Connie. Thanks for commenting.

    I like your breakdown of active lies, passive lies and half-truths. I think that active lies and half-truth are by definition done with intent to mislead, unless the audience is aware that the statement is intended to be satire or irony. Even passive lies become intentional deception when the passive-liar has a responsibility to speak out, knows that others are relying on him or her as a guide on the issue, or holds herself out as an expert or authority.

    The context in which the untruth is made, or the failure to correct the misinformation, will often be rather good evidence as to whether there has been an intention to deceive. I don’t know how we could ever come up with a way to “establish” prior knowledge of the falsity, as well as intent to mislead, in any particular case. But, I’m also not suggesting that anyone set up a machinery to do so. Each webjournalist should be policing himself or herself and raising issues of truth when they arise at other websites. If you are advising that we be slow to call someone else a liar (as opposed to saying the weblogger got the facts wrong and asking for an explanation or retraction), I agree.

    As for applying legal ethics standards to non-lawyers: It’s my opinion that, at least in the American legal system, the Model Rules and Code of Ethics are lowest-common-denominator rules — so low as to almost be an insult to the concept of fiduciary and professional duty. Asking others to live up to the lawyer’s code for candor is not aiming very high or asking very much. As I say in the main posting, webloggers are not expected to be impartial and may forcefully argue their cause. If a weblogger doesn’t know which facts are important (material) when drawing a conclusion or making an argument, she or he ought to stay out of the pundit biz and stick to personal diaries. I spent so much time pointing out to lawyers that they should be able to avoid intentional deception, because they often seem to be the most in need of tutoring on the subject.

    Comment by David Giacalone — January 22, 2004 @ 9:41 pm

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