An elephant in courtroom 73? Social media, regulation and the law

Image: courtesy of @yiyinglu*

Lord Justice Leveson’s enormous task is to examine the culture, practices and ethics of the media, with a special emphasis on the “press”.

This is because it was serious concerns about the behaviour of UK national newspapers that instigated the national Inquiry into media relationships with the public, the police and politicians.

A second part, if takes place, will more specifically look at “unlawful or improper conduct within News International, other newspaper organisations and… other organisations within the media, and by those responsible for holding personal data”.

Given the Inquiry’s remit, the media core participants are national newspaper groups and only a small amount of oral evidence has been taken in regards to online-only media: blogs, global websites, search engines and social media services (eg. representatives from Google and Facebook, Camilla Wright of PopBitch, and the legal blogger David Allen Green).

Understandably, during 26 weeks of sittings in courtroom 73 of the Royal Courts of Justice, Lord Justice Leveson has focused on the issues that led to the Inquiry and concentrated on national newspaper brands. He now has to make recommendations “for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards”.

It is at this point that one might consider the giant tweeting/Facebooking/Googling elephant in the regulatory / legal room, albeit outside the Inquiry’s official remit.  While Lord Justice Leveson’s recommendations will attempt to deal with the abuses of power that led to the Inquiry, what about the other digital media sphere that becomes ever more powerful (but with less clearly identifiable agents of power)? The one where circulations aren’t declining and business models collapsing …

It is not simply a question of regulation, it is also one of protection, for citizens using this media in an uncertain legal and regulatory landscape.

How will online media be controlled in future?

“Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th” Max Mosley, written submission to the Leveson Inquiry, July 2012 [PDF]

For the ordinary person it is social media rather than the “press” which is likely to have a more immediate and direct impact on his or her own daily life (for usage stats see: Pew 2012; Ofcom 2012) – at best, online interaction is positive experience garnering new social and professional connections, at worst, it leads to mucky disputes and harmful publications.

Instantaneous publications can cause chaos in both work and social spheres. In some cases, an online communication can lead to criminal convictions or expensive civil litigation.

Legal risks

There are numerous legal risks for Twitter users tweeting from and to the UK, as Luke Scanlon has laid out in this excellent summary on Out-Law.com (one of the best online legal resources around).

But are existing laws and regulatory models really suitable for dealing with the troublesome and damaging communication of 2012, which might include racist content, defamatory allegations, prejudicial statements about a court case, privacy infringements, data protection and copyright breaches (etc.)?

In a comment piece for the Guardian about the ‘Twitter joke’ case, Professor Ian Cram found that “judges and lawyers expend much intellectual energy on shoehorning new practices and behaviours into existing legal categories” and identified a challenge, to “show why tweets, blogs and other conversational forms of electronic speech should lie beyond the reaches of traditional criminal offences”.

While the High Court unanimously allowed the appeal in Chambers v DPP ([2012] EWHC 2157 (QB)), Cram is cautious about the ruling:

“Our high court is declaring alongside [Judge Frank] Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.”

Similarly, Jacob Rowbottom has raised concerns  in the Cambridge Law Journal and argues that the principles of European free speech jurisprudence “do not give sufficient protection to casual conversations and ‘everyday’ expression”.

Regulatory systems

What about the existing regulatory systems? The short answer is that they are numerous and messy. As Lara Fielden sets out in a recent report for the Reuters Institute for the Study of Journalism, there are numerous regulators dealing with different types of content in an incoherent fashion. In her view, there is a “conflict between converging media content and static standards regulation”.

“… such regulatory incoherence risks undermining public trust across the broadcast, print, video on demand, and online media platforms, and public confidence in the sources of information on which citizens depend in order to make informed, democratic choices…”

The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here).

Max Mosley, whose primary legal opponent was a national newspaper, has made some very broad-ranging recommendations for the regulation of the online sphere, in a submission to the Leveson Inquiry. He proposes a Tribunal for regulating the press, but adds that “…[E]ventually, the Tribunal should cover all activity on the internet in the UK…”

While he prioritises a tribunal for the press [PDF], before one for the internet (press regulation can be reformed quickly, but the internet would require “complex legislation”), he suggests that eventually: “as part of the UK internet statute, the Tribunal’s remit would be extended to cover the internet in the UK. This would include a power to suspend an individual’s access to the internet in addition to the Tribunal’s other relevant powers …” (He also has ambitions for EU-wide law and international conventions, but UK statute is his starting point) [p 8].

In his opinion, “…it must be able to deal promptly with internet problems right down to local level – for example bullying among schoolchildren on Facebook” [p 13]:

“There is a tendency to see the internet as ungovernable, a medium outside the law. This is nonsense. In time the rule of law will apply to the internet as it does elsewhere. National laws followed by international conventions are bound to come.

“Our new regulator must be able to offer remedies as and when they become available (as some already are). Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th. Our regulator must have the ability to deal with the internet, right down to micro level. This will increasingly be where the problems lie.” [p 13.]

It’s an ambitious remit for a national tribunal and Mosley’s proposals, if taken forward, would be likely to invoke criticism in various quarters; a vigorous consultation beyond the Inquiry would be needed to address these concerns.

Lord Justice Leveson has a big enough task thinking about news media, in particular the newspapers and their websites. These difficult questions around social media regulation and the “law of cyberspace” are more likely to fall to the next major review of the media, whenever that may be.

* This illustration is published with the kind permission of Yiying Lu, the designer of Twitter’s famous ‘fail whale‘. In fact, the original piece, Lifting A Dreamer, featured an elephant.

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This entry was posted in blogging, comment, contempt of court, courts, data protection, defamation, freedom of expression, human rights, journalism, leveson inquiry, media ethics, media law, media regulation, social media, social networking and tagged , , , , , , , , . Bookmark the permalink.

7 Responses to An elephant in courtroom 73? Social media, regulation and the law

  1. Hack says:

    Twitter and the internet certainly makes a mockery of the Contempt of Court Act. There are two options 1) go the US freedom of speech route, or 2) do the English thing where the law comes down hard on specific examples (i.e. Chambers, racist tweets, porn trial etc) and lets the Appeal Court try and work out a tortured way forward through the battleground.

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