How has the law adapted to the emergence and proliferation of social media tools and digital technology? Furthermore, how successful has the law been in governing the challenges associated with an ongoing reformulation of our understandings of public and private spaces in the online environment?
These were the key questions discussed by a panel of experts at the Information Law and Policy Centre earlier this month. The event heralded the launch of a new book entitled the ‘Legal Challenges of Social Media’ edited by Dr David Mangan (City Law School) and Dr Lorna Gillies (University of Strathclyde). A number of the book’s authors provided insights into the contents of their individual chapters.
Social Media and Press Regulation
Professor Ian Walden began proceedings with a discussion of his chapter on press regulation. His chapter was informed by his own experience on the board of the Press Complaints Commission (PCC) between 2009 and 2014.
Walden started by addressing the question of what constitutes “press law”. Walden highlighted that for the most part journalists and editors are subject to the same law as most people – there is no special ‘public interest’ defence or journalistic exemption for hacking into the voicemail of a mobile phone user for example. At the same time, journalists abide (to varying degrees) to an Editors’ Code which goes beyond the provisions of the law. In this context, the online environment and social media has rendered press regulation even more complex in a number of ways.
First, a converging media landscape has led to newspapers and magazines such as the Guardian, Financial Times, Elle and OK using video content which the online video regulator, the Association for Television on Demand (ATVOD), ruled was subject to the EU Audiovisual Media Services (AVMS) Directive in 2011. Second, Walden highlighted that social media has provoked questions about how journalists use ‘private’ information posted to sites like Facebook to source and report news stories. Third, the transnational nature of social media has significantly complicated issues around what constitutes ‘publication’ including in the provisions of (super)-injunctions and in cases concerning the ‘right to be forgotten’.
Ultimately, Walden questioned whether the current regulatory regime was sufficient in light of these challenges, but indicated that the prospect of the press submitting to a state regulator remained a distant prospect.
Reforming the Contempt of Court Act 1981
Another central plank of UK law for any working journalist is the Contempt of Court Act 1981. Where previously, however, reporting restrictions contained within the act were almost uniquely relevant to media organisations, social media has now made potential ‘accidental journalists’ of us all. In his chapter, Dr Daithí Mac Síthigh (Newcastle University) highlighted how the judiciary has wrestled with the interpretation of the Contempt of Court Act in light of the fact that jurors now have access both to all manner of information and the means of publication.
Mac Síthigh argued that the former Attorney General, Dominic Grieve’s thinking on the issue has alternated. On the one hand, Grieve has indicated that a few individual Twitter users are not likely to have much influence; it is the mainstream media who must comply with the Act of 1981. On the other hand, Grieve has noted that while the mainstream media do comply – for the most part – with the 1981 Act, various other individuals and jurors publishing online are not respecting the law.
In the last few years, the Law Commission has undertaken significant work on Contempt of Court considering – among others – the question of whether a publisher is liable for prejudicial material posted online, where the material has been published entirely legitimately prior to legal proceedings becoming active. In 2015, a new criminal offence for jurors conducting prohibited research – a Law Commission recommendation – was implemented in section 71 of the Criminal Justice and Courts Act 2015.
Protecting Freedom of Expression Online: Article 10 and Article 8?
Moving away from the law as it relates directly to the media, Professor Lorna Woods (University of Essex) noted that current debate around the internet and social media use often focuses on the interference of the state in Article 10 of the European Convention on Human Rights‘ (ECHR) right to freedom of expression. This is evidently an important issue, but she contended that perhaps we should also be looking at the state’s obligations to actively and positively protect freedom of expression. She suggested that although Article 10 does envisage some positive obligations on the part of the state, it is perhaps not always the best instrument for this purpose. Woods proposed that Article 8 ECHR’s notion of ‘respect for private life’ seems to suggest a “greater level of positive obligation” on behalf of the state than can be found in Article 10 ECHR. Article 8 ECHR is not just about privacy, she argued, it includes the spaces where we interact with society. In this regard, she suggested that rather than “obsessing” over Article 10 ECHR, recourse to Article 8 ECHR in cases concerning social networking sites ought to be a consideration in protecting our human rights. After all, social networking sites and internet-connected technologies are increasingly making more public those spaces which we previously deemed to be entirely private.
A Right to Post-mortem Privacy?
For Edina Harbinja, (University of Hertfordshire) the question of privacy does not end when we die. Her remarks based on her book chapter considered whether a right of privacy beyond death is necessary in light of our everyday social networking habits. Her study of Facebook’s policies for deceased users identifies what she regards as several ‘contradictory’ options for Facebook profiles after death including: memorialisation of the profile which can be requested by family/next of kin; the submission of a request for deactivation or removal of a deceased user; and the relatively recent option (2015) of providing Facebook with a legacy contact who can administer the profile.
Harbinja highlighted that the EU’s General Data Protection Regulation – which the UK is intending to implement regardless of Brexit – does not comprehensively envisage protection of the data of the deceased, but does leave open the possibility of member states making their own provisions. She also suggested that the collection of personal data on platforms such as Facebook demanded legal reforms be considered in the areas of copyright and in legislation containing traditional understandings of property.
Social Media and The Defamation Act 2013
In closing the panel, Lorna Gillies (University of Strathclyde) returned to a theme addressed earlier on by Ian Walden, namely the complications arising from the transnational nature of social media. Gillies’ remarks concerned the Defamation Act 2013 and the UK’s impending exit from the European Union. Under section 1 of the 2013 Act, a claimant must demonstrate ‘serious harm’ to their reputation for it to be actionable in the courts. Moreover, serious harm must be demonstrated in the English court system raising questions as to how English law will interact with European law in the future – particularly in cases where the defendant in any defamation claim is based in another jurisdiction.
Playing ‘catch up’? Reforming the Law in a Social Media Age
Taken together the panellists’ presentations highlighted several key themes. Since its emergence and normalisation, social media has challenged lawmakers and the legal profession by complicating definitional understandings of what we regard as ‘published’ ‘content’ and who we regard as ‘publishing’ ‘media producers’. Social media has also blurred the boundaries of public and private spaces, while creating a globally connected world which traverses both national and supra-national jurisdictions. These trends have rendered some existing legal provisions inadequate, complicated others, and led to completely new legislation. The overriding impression given by the panel was the sense that for the foreseeable future the law will continue to play ‘catch-up’.
Daniel Bennett, Research Assistant, Information Law and Policy Centre