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Are the Current Laws Adequate for Social Media?

Tuesday, 16 September 2014

Since the explosion of social media services such as Twitter and Facebook there has been a gradual proliferation of headline-grabbing legal slip-ups by users and also deliberate criminality.

The House of Lords Select Committee on Communications has released a report dealing with criminal offences committed through the use of social media.

Although the impetus behind the report was the widely held belief that the current law on permitted behaviour in social media was inadequate in the 21st century, the Committee (tentatively) concluded that the current law is “generally appropriate”.

This comes at a time when 34m people in the UK use Facebook and 15m use Twitter.

Cyber-bullying, Trolling and Jokes

Reasoning that “what is not an offence off-line should not be an offence online”, the Committee spelt out how cyber-bullying and trolling are already adequately handled by the Protection from Harassment Act 1997, the Malicious Communications Act 1998, and the Communications Act 2003.

This view, however, seems to fly in the face of conventional wisdom about the rapid advances in technology and its power to facilitate ever increasing levels of information sharing. In particular, as various commentators have noted, Twitter and Facebook were in no legislator’s mind when voting through the above pieces of legislation.

Indeed, jokes on twitter, such as the Robin Hood Airport bomb-threat tweet, remain controversial because of the many nuances of social media itself, and in particular how complete strangers may take sincerely what may simply be an “obvious” joke.

Revenge Porn

The Committee did admit that acts referred to as ‘revenge porn’ are not sufficiently served by the current law.

This is largely because the act being done avoids the criminal statutes, insofar as any original pictures and videos are usually taken with consent, and that it is usually a single distributive act into the public domain – a single Facebook post or Tweet – that serves to cause the irrevocable damage to the victim.

Furthermore, the recourse to the High Court for a privacy injunction is unavailable for the vast majority of victims due to a lack of legal aid and a lack of private funds.

As a result, the Committee called for the Director of Public Prosecutions to have the current criminal statutes ‘clarified’ so as to determine when an indecent communication would require prosecution.

Criminality

Importantly, the report advocates a requirement for social media websites to require users to register their real identities prior to using the site, so as to facilitate the prosecution of criminals.

While admitting that this may not be workable in practice, the Committee reasoned that current UK libel law may incentivise social media websites to reveal the identity of their users. Under the Defamation Act 2003, websites are protected from defamation lawsuits targeting third parties; however, websites lose this protection if they fail to reveal the putative tortfeasor’s identity.

For specialist advice regarding appropriate social media policies for your business contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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