Social media and the law: a case to regulate or educate?
is an editor of the BBC Academy blog
In December, the director of public prosecution issued a set of interim guidelines designed to help Twitter and Facebook users stay on the right side of the law.
Keir Starmer’s advice makes the distinction, for the public and prosecutors, between clear threats, harassment and breach of court orders on the one hand and other social media messages, including grossly offensive communications, on the other.
The first category would be ‘prosecuted robustly’, the second only if it crossed a ‘high threshold’, explained the DPP, head of the Crown Prosecution Service. Offending tweets taken down quickly should probably escape the force of law.
A string of landmark social media cases including the so-called ‘Twitter joke trial’, Lord McAlpine’s pursuit of Sally Bercow and legal action against people who ‘identified’ one of the Bulger killers online suggests that more clarity is needed. But is the answer education or regulation?
The DPP’s consultation on the guidelines closes on 13 March 13. I asked some interested parties what they would leave in Keir Starmer’s in-tray.
These interim guidelines could be reduced to two words: common sense. They’re a simple re-statement of a number of important and sensible laws.
If someone issues a message that breaches a court order, amounts to stalking, harassment, is grossly obscene or threatening, then they should have a prosecution considered against them, if there’s a reasonable chance of success and it’s in the public interest.
In that sense, the guidelines contain utterly and absolutely nothing new - and they only came about because of some daft or incongruous interpretations by the CPS. The Twitter joke trial was just one of them.
Freedom of speech is a difficult friend to have at times, but a friend we need. And freedom of speech is not just the freedom to say nice things.
Social media are very vibrant and beneficial media. Before we start jumping all over them, let’s remind ourselves that they’ve only just arrived - barely seven years old in the case of Twitter. Let’s not strangle them at birth.
The vast majority of social media users are far more canny and knowledgeable about what they can and cannot do than they were even a year ago. I suspect a year from now they’ll be even more understanding of the media.
We're in a contradictory and disconcerting place at the moment. Three years ago we saw the abolition of criminal libel and blasphemy, and the word ‘insulting’ is to be removed from the Public Order Act.
However, there has been increasing use of criminal law in relation to social media - sometimes in disproportionate ways, as in the 'Twitter joke' trial. Concerns have also been raised about the consistency and severity of sentencing, especially in relation to sick jokes and political - albeit distasteful - comment.
It appears, as Professor Ian Cram has argued, that much energy is spent on 'shoehorning new practices and behaviour into existing legal categories'. It is encouraging that the CPS now acknowledges these tensions with its sensible, if vague, interim guidelines.
A more nuanced consideration of social media use and the public interest is certainly needed. But there is another area to emphasise too: education. As the CPS rightly identifies, children ‘may not appreciate the potential harm and seriousness of their communications and a prosecution is rarely likely to be in the public interest’.
That lack of appreciation may apply to many adults too. Better public legal education around media is needed to prevent genuinely harmful communication acting against the public interest, especially in relation to breaches of reporting restrictions, threats of violence and harassment.
I generally agree with what’s outlined in the guidelines. It would appear that the prosecution services need some guidance for this new-fangled contraption - common sense is evidently not enough.
There is a fundamental flaw though: it assumes the public are remotely aware of communications laws that underpin these guidelines. I fear they do not understand libel, contempt of court, obscenity or harassment. Some journalists don’t, so why would Joe Public?
For this to work we need a better form of public legal education to bolster people’s digital media literacy, and it has to start as part of citizenship teaching in schools. You cannot legislate people to behave, you can only educate.
The alternative is to build in performance support to our social media apps to assist people to both behave better and stay within the law. Maybe an artificial intelligence version of David Allen Green’s #carefulnow hashtag tweets, whenever the latest Twitter storm kicks off, is the answer. My friend @spicemonki and I invented ‘Legal Tweety Clippy’ for such events.
Or people could just start being more conscientious and polite on social media.
Sue Llewellyn is a social media expert and trainer, and a former BBC journalist:
These proposals strike me as being a very measured step in the right direction. Over-reaction and over-regulation would not be in the public interest and would only lead to more confusion and money-wasting trials like that of Paul Chambers.
To draw a distinction between cases that might constitute a credible threat of violence or harassment and those that could be categorised as simply offensive seems like common sense, and one designed to protect freedom of speech.
However, prosecutors will still face a difficult task to determine whether something is so grossly offensive that it warrants prosecution. Worryingly, horrific online abuse appears to be on the increase and in my view often crosses the line between free speech and hate speech.
I would like the CPS to work closely together with service providers and social media platforms to ensure that they all do more to clarify the legal position to the public and to act very promptly to remove grossly offensive material.
At present I feel it’s somewhat of a cop out and largely left to the individual concerned who may have no grasp of the law, especially defamation, privacy and contempt, nor the impact their inexcusable abuse can have on the victim.
There is clearly a need to protect people from credible threats of violence, be they online or to their face, and the guidelines address that.
Where things get difficult is in the second group of messages that do not contain threats but which might be grossly offensive. These have to pass a high threshold to warrant prosecution, but the question is, what is that threshold?
We will need to see how prosecutors decide which messages are so offensive, indecent, obscene or false that they merit prosecution, and how they balance an individual's right to freedom of speech against another's right not to be offended.
My concern is that, as with so many other areas of law - libel, contempt, privacy - it is social media and online publication that is proving to be a friction point. It is generating more and more cases where the new publishers - the general public armed with a smartphone - are finding themselves the wrong side of laws of which they have little or no knowledge.
Ignorance is no excuse, of course, but we are going down a road where we may criminalise large sections of the community because they do not understand the many laws they can break when they publish their thoughts online, rather than just saying them in the pub.