Social media – the next legal frontier?

November 21st, 2012

Lord McAlpine has caused widespread shock in the twitter community by threating legal action against those who tweeted or retweeted his name in connection with allegations made by the BBC about child sex abuse. Like users of many social media outlets, the assumption has been that there is a distinction between saying something online in a personal capacity and publishing a statement as a broadcaster or writer. The proposed action has been a wake up call for many.

Social media has allowed people to vent feelings online in a way that most would never have dared to offline. David Aaronovitch’s  10 golden rules for Twitter produced this week was timely. In essence it tore down the artificial distinction individuals make between their online persona and their other daily interactions. The best rule was the last. Don’t tweet something you wouldn’t say to someone in person. Better still are the figures of Mrs. Doasyouwouldbedoneby and  Mrs. Bedonebyasyoudid  summoned up by Charles Kingsley in his Victorian morality tale, The Water Babies. 

How would most people feel about being named a sex abuser without evidence? Would you be reassured that the individual just implied that you were an abuser? Why should be expect a level of behaviour in others that we show no desire to live up to ourselves? While we may answer these questions in the negative, our actions are often at odds with this.

The most alluring things about social media are often ironically its weakest: instantaneous communication coupled with a large audience. It appears to suspend social norms of communicating with each other. The difference between McAlpine and others who have been the subject of online rumour and false allegations is the depth of the latter’s pockets. Where others have had to develop a thick skin, McAlpine’s legal team has been able to prompt a rethink. However, the precedent he has set is likely to stay with us.

Those of us in legal practice (albeit not media law) will have seen an increasing trend for litigation around social media. While the focus tends to be on cases such as the twitter joke trial, there are more parochial examples in a range of other areas. The ease with which individuals can promote themselves through social media has enabled unprecedented freedom of expression and consequently monitoring. Police and public authorities can search forums and websites for signs of public order offences and employers can use facebook profiles to see why their employees are off work.

In the early days of social media, it was seen as a type of ‘wild west’. Now it has become more commercialised and better understood by the mainstream, the move to tame it will become stronger. Has the increase in litigation ruined social media? No, in my view, quite the contrary. Instead it should be taken as a realisation that it is a space where the balance between rights and responsibilities must be struck. The fact it merits this approach is a testament to its growing relevance.