As 2011 draws to a close, we take a look at privacy and freedom of expression – areas of the law that were brought into the public consciousness in spectacular fashion this year thanks to social media.

Social media is a phenomenon that exists on the fringes of the law, not because social media is in any way illegal, but because social media is inherently difficult to police. Whilst this is not to suggest that social media is above the law, there are several practical limitations to consider when applying the law to social media websites; most notably, social media is fuelled by the concept of free speech, a basic freedom enshrined, to a certain extent at least, in Section 12 of the Human Rights Act 1998.

Difficult to police
The law pertaining to social media is further complicated by issues of jurisdiction, libel and natural justice, so how exactly does the law govern social media?

It is necessary to highlight two points at this stage. Firstly, social media can refer to numerous technologies and services that enable people to interact with each other through the creation, publication and exchange of user-supplied content. Secondly, social media is governed by various laws, provisions of which are likely to have been framed for purposes and activities entirely different from those relating to social media.

When the law is mentioned in the context of social media, the issue at hand often involves competing interests of privacy and freedom of expression. As noted above, freedom of expression is enshrined in human rights law, but few if any freedoms are without constraint. No person, excepting the monarch or Crown, can enjoy unlimited freedom in a legal context, so it is unsurprising that the deeply entrenched human right of freedom of expression is curtailed by laws pertaining to privacy, which is also mentioned in the Human Rights Act 1998 but is afforded far less attention. In fact, the common law of England and Wales does not recognise any kind of personal right to privacy, so a fleeting reference to the European Convention on Human Rights (ECHR) 2000 via the 1998 Act is more or less as far as privacy law extends in the UK.

The people who use social media services usually expect their right to freedom of expression to be observed at all times, but others also expect their assumed right of privacy to be observed to the same extent. Unfortunately, reality often fails expectations. Reality also has the capacity to bring conflicting legal aspects to the fore, as in the recent case of Ryan Giggs, whose private life was made public through Twitter, one of the internet’s most popular social media technologies.

The Ryan Giggs Affair
Despite the footballer having acquired an injunction to prevent his personal indiscretions being published by the UK media, a pointless endeavour considering his affair with a former glamour model was mentioned in tabloids around the world, the UK’s social media decided to out him anyway, as did John Hemming, a Liberal Democrat MP who sought to exercise his parliamentary privilege. The Welsh winger was not happy about his so-called ’superinjunction’ being ignored by Twitter, which is now being sued by Mr Giggs, whose injunction had been granted to protect him from harassment (not to preserve privacy). Unfortunately for the footballer, Twitter is a US-based firm and is not, therefore, within the jurisdiction of the UK courts. Issues of liability are also relevant in this case, as the High Court would have to rule whether Twitter was legally responsible for the tweets of its members.

Not one to miss an opportunity, Prime Minister David Cameron vowed to change the law on injunctions in light of the Giggs fiasco, which shared company with events involving Jeremy Clarkson, Jemima Khan, Rio Ferdinand and Andrew Marr. Mr Cameron’s brush with social media did not stop at a sound bite, however, as months later he proposed banning suspected rioters from using social media, claiming Facebook and Twitter can be used for “ill”, but then so can the telephone.

Various laws have been breached
Aside from issues of privacy, freedom of expression and liability, social media users have been accused of breaching various other laws in their eagerness to exchange edgy content. In the UK, any website that publishes libellous content can be held accountable in court, so it follows that the more edgy posts and tweets of social media users could land social media websites in hot water, assuming jurisdiction can be established. Social media websites must protect themselves at all times by removing potentially libellous comments, which works in theory at least.

Finally, social media is also used by companies for the purpose of brand marketing. Social media is a powerful communicator and the theory asserts that a company has no better chance of marketing a brand effectively than through social media networks. Unfortunately, social media users tend not to follow big brands, so big brands have to be creative in exploiting networks. One method currently used by some firms is to pay bloggers and tweeters to post reviews or comments about their products or services. Although there is no social media law prohibiting this activity, the practice may fall foul of The Consumer Protection from Unfair Trading Regulations 2008 (provision 22 of Schedule 1 – “falsely representing oneself as a consumer”).

Social media is the new frontier of the Internet and, as with most frontiers in history; some degree of lawlessness is inevitable.

Picture by Asthma Helper

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