Sunday, 22 December 2013

Social Media and the Law Across the British Isles

In the same week that will host the final game of the British and Irish Lions tour of Australia I have produced a comprehensive overview of the laws that govern Facebook and Twitter across the British Isles. This includes separate and specific analysis of the four jurisdictions of England and Wales, Scotland, Northern Ireland and the Republic of Ireland.

England and Wales

On September 20 2012 Keir Starmer QC, DPP for England and Wales announced that new social media prosecution guidelines would be discussed after a series of controversial arrests and prosecutions. For some time the public had been critical of the heavy-handed approach of the police and judiciary against social media users.

Judges and other law officials had also voiced concern about the uncertainty of the law. And I think everyone had a genuine desire to uphold traditional notions of free speech. The whole problem was typified by the #TwitterJokeTrial which involving Paul Chambers who tweeted that he would blow up an airport if his flight was cancelled.

On December 19 2012 the interim social media prosecution guidelines were then published. On the same day a public consultation was launched. The consultation process closed March 13 2013.

On June 20 2013, almost 9 months to the day after Keir Starmer QC announceed that the Crown Prosecution Service and other law makers would discuss social media laws, the full and final social media prosecution guidelines were published.

Little change was made to the original interim guidelines; and those changes made largely concerned small but nonetheless important aspects of wording, as well as the addition of aggravating offences. No sooner had the final social media guidelines been published and people were breaking the law. In this instance I’m talking about a number of Twitter users found themselves in trouble with the criminal law after tweeting the identity of the girl who was abducted by her teacher, Jeremy Forrest. On the issue of new social media guidelines and the continuance of social media lawbreakers I think the Firm Magazine (@TheFirmOnline) made the most incisive comment on this:
In short: yes the new law may be with us; however, as long as the public aren’t informed and educated about the law, then it’s of no use. Though, that’s why I've been impressed with Taunton School in Somerset which now teaches students aged 13 and 14 about libel and other risks on Twitter, Facebook and other networks.
Also, in my previous Defero post ‘Is social media uncontrollable’ Vicky Beeching, a research fellow in internet ethics made a very important point that Twitter and other new media are only in their infancy. She said:
"Firstly, we need to remember that social media is in its infancy. It’s so young. Twitter has turned 7, YouTube has turned 8. We’re literally taking baby steps. So we can’t panic and say it’s out of control.
This chimes well with the narrative told by John Cooper QC which you can read here in his interview with Charon QC. You can see a full timeline of the evolution of the law’s approach in England and Wales to social media users here. You can also an analysis and breakdown of the full and final social media prosecution guidelines here.

It’s also important to note that the UK’ senior libel and media law judge, Mr Justice Tugendhat also made new law on the issue of breach of court injunction by social media users which you can read here.
It's also proper to quickly touch on the civil law aspect of things as they exist in England and Wales.The story on the civil side of the law has been the making High Court’s Mr Justice Tugendhat who settled the McAlpine v Bercow case, whose findings and effects you read here.

The position is pretty much this: social media may have made publishing vastly easier, it hasn't however made publishing responsibility free. Therefore you can't properly publish anything on Twitter or Facebook that you wouldn't put on the front page or even back pages of a newspaper.

The situation hasn't been as fluid in Scotland as it has in England and Wales and elsewhere. The position can be summed up pretty quickly. Where on December 19 2012 the DPP for England and Wales published interim social media guidelines, the lead prosecutor north of the border, the Lord Advocate of the Crown Office and Procurator Fiscal Service (COFPS) said that they would not follow the lead of DPP, Keir Starmer QC.
The Scottish prosecutor’s position was that they would not hand down social media prosecution guidelines; but would rather continue to take a ‘robust approach’ against offensive material posted online. No definition of the term ‘robust approach’ was given.

Northern Ireland
As is always the case with Northern Ireland, the behavior of the public on social media has often been libelous and explicitly criminal. In effect, social media has given sectarianism a third leg. It’s given die-hards and the socially delinquent a new medium through which they can voice their hatred.

 Dr Paul Reilly (@PaulJReilly) of the University of Leicester is a good starting point to understand the particularities of social media behavior in Northern Ireland. Certainly his term, ‘online interface areas’ (the timeless tension between Catholic and Protestant) is especially apt. You can read my interview with Dr Reilly here. Also keep an eye out for his book, ‘Framing the Troubles Online’.

Coming back to the online situation in Northern Ireland, Twitter and Facebook have been used actively as a tool of misuse and abuse. And similarly to England and Wales, Northern Ireland authorities have seen an exponential growth in the number of arrests and prosecutions in recent years: with nearly 3,000 offences reported to the Police Service of Northern Ireland in 2012. There was a whole feature on the local broadcaster UTV on the social media-related violence back in December 2012 (here and here).
In response to this the growth of online misuse authorities have made a confident response. I've indented the major points that should be known.
The Chief Constable of the PSNI, Matt Bagott has said (here and here) that his force is content to work by the guidelines published in England and Wales.
The Law Society of Northern Ireland has published at least two warnings about the legal risks associated with social media (here and here).
But this is what’s really important to know:
The Public Prosecution Service for Northern Ireland has said that interim social media prosecution guidelines, specific to Northern Ireland would be published by the end of the summer 2013.
As I said earlier and as anyone familiar with Northern Ireland will know, Northern Ireland and its communities are very specific to themselves. So while it can be expected that the coming interim guidelines will be similar to those drafted by the CPS; we should expect the usual wording differences as well as the inclusion of aggravating factors relating to sectarianism and religion.

The Republic of Ireland
To understand the social media situation in Ireland we need to go back to December 28 2012 when the Oireachtas Committee on Transport and Communications announced that it would examine the role of social media in public life.

Committee chairman and Fine Gael TD Tom Hayes was instructed to lead the investigation and to report back to Minister for Communications, Pat Rabitte in early 2013. It’s also important to note that the decision to investigate social media fell against a dark back cloth: the earlier suicide of the minister of state for agriculture, Fine Gael TD Shane McEntree. His death has been attributed in part to a period of social media abuse which had followed the budget announcement.

While Keir Starmer QC took the starting position that the CPS would produce guidelines and thus soft law; the relevant Irish officials began from the premise that fresh legislation, thus hard law could be implemented to deal with social media misuse and abuse. Both RTE and the Irish Times covered the story, and I wrote a piece saying that ‘The sword of legislation is ostensibly wrong.’

The Irish Twitter community responded with scepticism that legislation could be brought forward. Those involved in the industry urged officials not to overreach and to make use of the laws already in existence. Irish barrister and Irish Times columnist Noel Whelan (@noelwhelan) also urged application of existing laws, writing in the Irish canonical: ‘Irrational fears about new media have become surreal.’

On February 21 2013 the Oireachtas committee announced that it would launch a public consultation and that it would hold a series of hearings. Then on March 6 2013 the Minister for communication Pat Rabbitte gave an address to the earlier said Oireachteras Committee, a transcript of which you can see here [all emphases are my own]:
"Some people have yet to fully appreciate that public messages on social media have the same legal character as if they were published in a newspaper – defamation and harassment laws apply online in just the same way as they do offline.
This echoes the findings of Lord Justice Tugendhat in the McAlpine v Bercow case.
Some of these things have the character of growing pains, as soon as practice evolves and behavioural norms online become embedded, either through education or experience, some of this behaviour will mitigate.
This also echoes John Cooper QC and Vicky Beeching. However Pat Rabbitte qualified this position:
But there will always be some willing to use online media to bully, harass, or demean others. Government needs to be cognisant of the damage that these people can do, and be prepared to react in a proportionate manner.
What does this mean - legislation or prosecution and behavior guidelines?
Critically, social media or the internet didn’t lead to the invention of bullying or harassment; these behaviours existed long before that. However the nature of the internet, or at least of many of the sites involved, is such that some aggressors can either hide behind anonymity... 
Pat Rabbitte then made three important observations relating to the challenge authorities face:
The first main reason why governance in this area is so complex lies with the fact the internet governance is, and indeed has to be, conducted on a multi-jurisdictional basis. 
The second complicating factor around the governance of social media is the fact that they are, undeniably, media. This is not just due to the activity of ‘traditional’ media players in using social media, or even online media players; social media themselves are now important media players even when there are no journalists, or payment, in the picture – they are an integral part of a large and diverse media ecosystem. As such, Social Media is treated in much the same way as any media, with due consideration given to Article 10 of the European Convention on Human Rights in any measure that might impact on it. 
The third main reason for this is the breadth of the implications; many different areas of Government are affected by this phenomenon and have an involvement, but no single Department or agency can steer or manage it. As Minister for Communications, Energy and Natural Resources, I have policy responsibility for providing a supportive legislative and regulatory environment to facilitate the development of high quality communications infrastructure and services. However, I do not have sole responsibility for addressing as to how that infrastructure is used. 
Responsibility for measures to deal with harassment and abuse online sits with the Minister for Justice and Equality, in much the same way as his Department deals with the same issues in the offline world. To that end, his Department has established an executive agency, the Office for Internet Safety that deals explicitly with online safety. 
There are solutions to these issues however. In the first instance, children, parents and teachers all require support in terms of understanding the nature of the threats that can sometimes appear online.
This comes back to the comments made earlier that referred to the Firm and Somerset's Taunton School which teaches by curriculum which includes libel law. More positive comments can be seen below on the education aspect:
The Department of Education have already done some very positive work in this regard, including the publication of a new Action Plan and Bullying that includes some concrete measures on cyber bullying. 
The Office of Internet Safety, who will present shortly, also has a number of measures in place to this end which I will leave to them to explain. Non-government players also have a role – I note particularly the work of the National Association of Principals and Deputy Principals in this area.
It's good to see that Rabbitte is aware of the current laws that exist on the statute book:
There is also a set of robust legal measures in place for defamation, introduced as recently as 2009, which covers online comment. Similarly, Section 10 of the Non-Fatal Offences against the Person Act 1997 deals with harassment. However, while this Act deals with direct communications with someone, it does not deal with communication ‘about’ someone and at present is apparently being interpreted in a very narrow sense by the courts. We have existing mechanisms to deal with the abuse of the postal or telephone system; the Communications Regulation (Amendment) Act 2007 introduced measures dealing with the use of the telephone system to send messages that are grossly offensive, or “… indecent, obscene or menacing”, or “for the purpose of causing annoyance, inconvenience, or needless anxiety to another person”.
This is important:
However, it appears that there may be a gap in the legislation here in that electronic communications infrastructure is not covered by these measures and as such there is no specific mechanism available to the Gardai or the Courts to deal with the type of difficulties we have seen. My Department is presently considering ways of addressing any such issue.
The Irish Times covered the story that Rabbitte had said there could be a “gap in the legislation” here and on the same day as Rabitte’s address it was announced that Facebook and Twitter representatives would speak to the Committee. You can read the detailed briefing delivered by Twitter and Facebook on March 7 2013 here. You can also watch some of the Committee hearings on YouTube here.

On March 20 2013 the lecturer, solicitor and representative of Digital Rights Ireland, TJ McIntyre (@tjmcintyre) appeared before the Oireachtas Committee and provided valuable and comprehensive coverage on the state of Irish law which you can read here and here. Coincidentally it was revealed on May 20 2013 that Fine Gael had drawn up a new Social Media Guide that would be distributed to all TDs, councillors and key party workers. Only for the eyes of people associated with the party, nothing official but interesting nonetheless.

Since then the trail of events has lost momentum and little appears to be happening. The only episode or event or note was the Irish High Court ruling that found that social media sites would be required to remove defamatory material until any trial.

The only other note to make is that Ireland’s history has been one that has been far more censorious and is renowned for the laws that effective closed Irish society off from the world during WWII. Ever since the legal history and culture has been more censorious and illiberal than other nations. I’m not saying that the Irish legal regime is explicitly more pro-censorship but rather there is a subtle but nonetheless marked difference.

This could be a telling signal that new legislation could be introduced; though we should be mindful of Communication Minister, Pat Rabbitte’s clear assertions that his government are aware of European legislation that guards freedom of expression.

This post originally appeared on Defero Law here.

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