WDTK: Comment from Andrew Ecclestone

I think one of the issues is that which also affects Internet Service Providers (ISPs).  ISPs argue that, like the post and telephone companies, they can’t be held liable for what is transmitted via the communication channel that they provide.  They are simply neutral providers of a communications facility, and do not – and should not be required to – act in any kind of pre-emptive editorial manner.  There has, of course, been plenty of litigation and legislation around this topic.

MySociety (and those that have subsequently built sister platforms in other jurisdictions based on the Alaveteli code) are when they refer to being analgous to Hotmail attempting to put themselves in the same category as ISPs, phone and postal companies; at least that’s how it appears to me.  There are good reasons for this, not the least of which is that if MySociety were the people from whom all these 100,000 FOI requests came from, they’d be the ones liable for fees, blocking of requests on the grounds of vexatiousness, and potential breach of copyright when publishing disclosed information.

However, by taking certain editorial positions on FOI policy and law (such as the scope of the law and providing civil servants’ contact details), they step away from the position of being able to reasonably claim ‘common carrier’ status, and towards that of being a publisher.  It is also clear that online publishers can be held liable for things that appear on their website, which is why there is already some moderation of the site.

As is clear from the discussion above, MySociety could go one of two ways in response to the issues highlighted in this blog post.  It could abandon all moderation (except in response to takedown requests that comply with the usual requirements), with the risks highlighted by Tim in terms of official sentiment towards the site.  Or, it could step up its moderation of the site, to try and reduce the unnecessary friction caused by some users.  This has a higher resource requirement, and would also result in some requesters becoming frustrated with MySociety instead of the public authority that was not disclosing the information they are after.

Tom has indicated, in his comment above, that MySociety are likely to go down the latter route, but that:

The challenge is developing policies to minimise abuse or nonsense that doesn’t discourage legitimate, politically inexperienced and low-skilled users from using the power that FOI can offer: these are the core beneficiaries of our charity.

Such policies have to be balanced, nuanced and allow for the fact that our volunteers have limited hours in the day. “

My contribution to this debate would be to endorse the call for more active moderation, but that rather than relying on volunteers, MySociety should employ people to do this.  If the Government wants to endorse WDTK as a tool for making FOI requests and they clearly do this on the Beta of the new www.gov.uk site – then they should fund MySociety to employ such a moderator: link.

Alternatively, instead of endorsing e-tools built by civil society, the government or the Information Commissioner could build their own request making site.  An example of just such an alternative already exists in Mexico, where the Federal Information Commissioners run the Infomex portal.  That even allows anonymous requesters to pay any fees they’re liable for without revealing their identity, as well as linking disclosures into a disclosure log and enabling the integration of appeals into the Commissioners’ own complaints management systems.

Given the current economic situation, and ideological inclindation of the current government, it is unlikely that we’ll see the government or the Commissioner building such a tool, even if the Mexican Commissioners are willing to hand over the code for their tool for free (which I understant they are).  MySociety are well placed (especially given Tom’s position on the Transparency Board) to make a case to government that it can more cost-effectively provide this e-government service by funding more active moderation of WDTK.

This would, of course, raise issues about whether the government-funded moderator was blocking requests that were politically inconvenient rather than genuinely vexatious or abusive.  But it seems to me that could be dealt with by transparently publishing (but not transmitting to the intended public authority) those requests that the moderator had blocked.  (An analogy would be Google’s Transparency Report.)  The public and public authorities could see whether the MySociety moderators were trustworthy, and the tool as whole might be more acceptable to hard-pressed officials who have to handle production of responses to FOI requests.

Such funding might also have the benefit of seeing more requests on the site ‘classified’ more quickly, resulting in production of more reliable statistics about use of the tool.

Comments

  1. A recent decision by Mr Justice Eady in a libel case against Google might suggest that WDTK will be able to continue with existing levels of moderation. But the cost of maintaining that position might be higher than the cost of not employing a moderator: Google did not get much comfort in terms of recovering its legal costs in this case.

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