The Great Facebook Faggot Fiasco | Susan Hall · IP/ICT Lawyer

The Great Facebook Faggot Fiasco

Monday, 11th November 2013

Recent decisions by Facebook suggest that it may be acceptable to upload explicit video clips of an execution but mentioning what you had for dinner last night will get you banned.

Last month, the social media giant reversed a ban on showing clips of beheadings, citing the importance of “context” to mitigate offence. At about the same time, it suspended the accounts of two users who made reference to a traditional British pork dish ¹ for transgressing Facebook policies on use of offensive language.

Faggots, the dish in question, is popular in South Wales, South-West England and the Midlands². Like many “traditional” “well-beloved” and “classic” dishes, it basically consists of the less reputable parts of the pig, minced, seasoned and spiced.

Facebook suspended the user accounts on the basis that the dominant (US) meaning for the word “faggot” is as a derogatory term for a homosexual man. This rendered the use of the term in any other context unacceptable. Although the two user accounts have been reinstated, Facebook continues to block advertisements for the leading mass-market brand of pork faggots, Mr Brain’s Limited.

The first point to note is that this is not a Robertson’s Golly type of case. When choosing to adopt a golliwog mascot, Robertson’s must have been aware they were using a design based on a racial caricature. Majority opinion shifted, decisively, against the acceptability of such a design over the years, but its connotations were implicit from the beginning.

Nor are the issues the same as those raised by people objecting to the use of “faggot” in the lyrics of songs such as Money for Nothing or Fairy-Tale of New York. In those songs the derogatory usage of the word is explicit, but in character for the song’s narrator.

At the time when “faggots” started to be used for overlarge pork meatballs, predominantly containing offal, the word does not seem to have had (on either side of the Atlantic) any implication of homophobia. Profane language (especially when used to describe acts which were, at the time, illegal) circulates orally long before anyone dares to record it in print. Nevertheless, the earliest printed use of “faggot” in its current US sense (using the spelling “fagot”) appears in New York in 1914. The meaning seems to have crossed the Atlantic (predominantly in films, books and TV shows originating in the US) in the 1960s and continues to be considered an Americanism, albeit an offensive one.

The US word probably comes from an archaic term for “a useless old woman.” This seems consistent with other terms such as “queen” and “gay”, which also began as insulting terms for women, the latter being late nineteenth century slang to describe a (female) prostitute.

By contrast, “faggots” first appeared in print in the UK as a name for the dish in 1851. Mr Brain’s, according to the company’s own website, introduced the product in 1925 and have been producing it continuously under that name ever since. One theory is that the name derives from “fegato”, the Italian word for liver, which is a principal ingredient.

In fact, it is a perfect example of a word with a genuine, long-established, inoffensive usage being brought to the attention of a different group of people who only know it as an offensive term. For those offended by the word its etymology is irrelevant: the word in itself has the power to hurt, profoundly, and they want that hurt to stop. Facebook, in this instance, seems to agree that the latter group’s rights should prevail.

In doing so, Facebook is following a precedent already set in EU trade mark law, though arguably expanding on that precedent to an extreme degree.

There are twenty-eight Member States of the EU, with multiple languages, and they have many hundred years of complicated, interlocking, often hostile histories. Accordingly, the opportunities for clashes between words which are innocent in one location and grossly offensive in another are magnified.

The Trade Mark Directive³ and the Trade Marks Act 1994, which implements it, prohibit the registration of

trade marks which are contrary to public policy or to accepted principles of morality.

How that prohibition works in practice was explained in some detail by Simon Thorley Q.C. in the Tiny Penis trade mark decision⁴:

The dividing line is to be drawn between offence which amounts only to distaste and offence which would justifiably cause outrage or would be the subject of justifiable censure as being likely significantly to undermine current religious, family or social values. The outrage or censure must be amongst an identifiable section of the public and a higher degree of outrage or censure amongst a small section of the community will no doubt suffice just as lesser outrage or censure amongst a more widespread section of the public will also suffice.

Furthermore, that identifiable section of the community can be limited to a single Member State, or part of it:

Second, signs likely to be perceived by the relevant public as being contrary to public policy or to accepted principles of morality are not the same in all Member States, inter alia for linguistic, historic, social and cultural reasons. Accordingly, the perception of whether or not a mark is contrary to public policy or to accepted principles of morality is influenced by the circumstances of the specific Member State in which the consumers who form part of the relevant public are found.⁵

An application for a Community Trade Mark which fails the public policy test in one Member State will fail to qualify for a CTM. However, this does not prevent the brand holder from applying for individual national marks in those parts of the EU which apply different standards, and using the brand there.

What Facebook is doing is decoupling the location of the usage (both the users whose accounts were suspended were British, and Mr Brain’s Limited is seeking only to target British consumers with its advertising) with the standards it chooses to apply globally.

In so doing, it arguably goes significantly beyond what is needed to protect the legitimate concerns of those offended by the use of the term in the US. Furthermore, a cursory glance at the site shows that Facebook applies an arbitrary and definitely North American view of what constitutes offence in terms of food and drink (for example, the “Irish Car Bomb Appreciation Society, Montreal Chapter”⁶ flourishes untroubled).

As Jane Austen (a Hampshire lass who no doubt ate a fair few dishes of faggots and peas in her time) observed, “It is singularity which often makes the worst part of our suffering.” Those penalised by the Facebook faggots ban may reasonably complain that they are being singled out unreasonably, given what the site is otherwise prepared to tolerate.

In an increasingly global market-place such conflicts are perhaps inevitable. What Facebook urgently needs, therefore, is a consistent strategy for resolving them, one which takes into account the interests of all stakeholders and makes allowances for cultural differences between countries. The current mish-mash is simply not palatable, however much gravy Facebook serves it up with.

Tagged

• Social Media
• Trade Marks