A little clarification is requested from the techies and legal eagles out there familiar with not just the contemporary legal issues of online content, but familiar with what it really is.
For example, “It was online.” Or, “I saw it on the Internet,” are very common phrases to describe presence of material on a server or replicated from it to another computer. Yet, I wonder whether anything is really “on the Internet” since the content is always at a specific location and access to it has to be gained through the medium of the Internet through protocol exchange.
The content itself does not exist “on the Internet” but is rather here and there on servers and computer harddrives and is accessed from outside by voluntary methods. That is, someone has to ask, via a keyword or phrase, for something for it to “appear.” It becomes visible – as a download to a computer - because someone asked for it.
Formal advertising is slightly different, although related, because it is in truth advertising and intended to promote various messages. Online content per se does not act, function or can be defined as advertising because it stays in one location unless someone asks for it.
The nuance is extremely important in the legal world, I believe, because globally the Internet has perhaps mistakenly been treated as a billboard or publication per se. It is not.
Thus issues related to Thailand’s criminal defamation laws come to mind. One method of filing defamation charges against “online” posters – really authors who store information at given places and it in turn is accessed on a voluntary basis by people asking for it – is to charge “violators” or “offenders” with defamation through advertising/publication online.
Does online publication really exist, in a strict legal sense. Wee should not forget that any information “on the Internet” is not actually on the internet, but is in fact removed or copied from a storage facility, called a server, then transmitted – at request – to a destination the requester is located.
The nuance is extremely important because it opens up a slew of conjectures related to conventional definitions of what online means, and not just whether something was “online” or not. The process can be compared to snail mail or phone calls. In the former a letter is written and then taken from one’s home or office to the post office where it is processed, routed, and then sent to the final destination. In this instance, however, the recipient may or may not have asked for the mail. In the telephone call example, there is a physical link – telephone network – that ties the two ends of a telephone conversation together. Yet, the information that moves back and forth between them is not physical per se. It lacks physical substance. In this form of communication, both parties have to agree to the conversation in the sense of as long as they both talk, then they are volunteering to do so. But as soon as one party decides to curtail the conversation, he or she can hang up. There is a voluntary component of such conversation, despite sometimes unpleasant or even inciting content. Keep in mind that a call has to be made and the called person has to pick up the phone to answer.
In the case of the Internet, the scope, depth, frequency and nature of content spans all types of media, from video to photographs, from text to audio. A computer user “goes online” from a computer to obtain, provide or purview any kind of information he or she wishes. To do so that user has to voluntarily key in words or phrases that prompt various protocols “on the Internet” to take place so that the information that the user might be seeking is first identified, compiled, and then presented in link form or webpage to the user as a download voluntarily asked for. Pornography might be one of the more obvious areas where this voluntary surfing is recognized as such. But the same principle applies, as stated in the beginning of this monograph, for other media content, pornographic or not. It could be artistic. Or performing arts. Or political. Or any of a thousand other fields where detailed information is today easily and quickly provided by search, identification, sorting, and downloading to the requester.
In summary, there are several vital concepts to review in defining what we mean by “online.”
1. Actually nothing is online. It’s not “there.” Rather it is offline on a server and ready to be copied and transmitted, at user request, to user.
2. The problem about the misnomer “online content” is that certain people are rightly or wrongful offended by some of it. Or they assume themselves to be some kind of social good Samaritan, or perhaps a bit insanely, a guardian of moral values or revered institutions, and take it upon themselves to seek out information which is not online but which they claim is. What they are doing, in review, is voluntarily asking for downloads of material they specified.
3. If one were to use the analogy of a large bookstore, all those books have been printed and made available for readers. But they can’t be accessed by magically appearing in front of interested readers. They have to be physically obtained from shelves and removed by the buyer. In the Internet instance, servers might be seen as shelves where such publications are available. The Internet itself is not a publishing tool or an advertising apparatus – it is similar to a slide projector, not the slides themselves.
4. The digital nature of today’s media has caused several problems, not the least of which is ready access through the Internet by the general public of material that spans the gamut of good taste and bad. But that material is not “on” the Internet. It is, if anything, transmitted over the network. Because it is in digital form, it is an exact replica of the original. Yet it is still a replica. Perfect, perhaps, but it is not the original.
5. Finally, because of the real dangers posed to society by certain content so transmitted, censors and political, religious or other authorities have decided to blame the Internet, and those who “post on it” – although they are doing no such thing – for crimes and other offenses. Not to belittle the drug trade, but opium farmers and governments where they grow opium legally like to point to the demand for drugs and not just the supplier. The same thing with cross-border illegal immigration in the US where Mexican labor floods across into the country. Many people blame demand for the labor and not so much the issue of individuals needing jobs illegally entering another country. It is demand. In terms of the Internet, it is also demand that results in online interchange of information and media. None of that media will find its way to your computer if you do not ask for it or go to a website – again, asking to do so – where that media appears.
As an Internet user, you are responsible for what comes on your computer while you are surfing. The offensive, or interesting, or alarming, or educational media is not “there” online waiting for you to pluck it. It has to be obtained by you asking for a download.
And what does that mean here in the Land of Smiles? Basically it should mean that there is no such thing as “online content.” The content may have been obtained online, but it does not exist there in and of itself. You have to voluntarily ask for it, intentionally or inadvertently.
It seems we have spent decades describing something that does not exist. It won’t be the first time, nor the last.