Where does the law stand in relation to social media?
Social networking has become very popular, with sites such as Facebook, You Tube and Twitter, writes Rachel Burnett of Paris Smith. Information, text, photographs, video clips, comments and opinions are shared, often in an entirely open and accessible public forum
Legal risks arise from the use of social networking, as for other communications. There are also risks because of the nature of social media technologies. They can be easily accessed at little or no cost and can readily be used with minimal training. Comments can be made and disseminated spontaneously, immediately and widely.
Traditional legal concepts, such as defamation, copyright infringement, data protection and data privacy apply to social media. Crimes can be committed using social media: for instance, harassment, inciting violent disorder, encouraging terrorism or disseminating terrorist publications. Sending messages that are grossly offensive or of an indecent, obscene or menacing character, is a criminal offence, whether or not the message is received.
Traditional legal concepts, such as defamation, copyright infringement, data protection and data privacy apply to social media
There is now judicial case law involving social media. New legal principles specific to social media are being established.
Codes, guidance and rules have been drawn up which do not in themselves have the force of law, but are very helpful to demonstrate evidence of good practice in legal compliance. For example, the information commissioner’s office has published an online code of practice in relation to personal data. The Advisory, Conciliation and Arbitration Service, an organisation whose objective is to prevent and resolve employment disputes, has issued guidance about social networking and the workplace. It is useful for an employer to have an effective email, internet and intranet policy which it has communicated to its employees, that is clear in its prohibitions and permissions, and which sets out disciplinary procedures for the employer to follow if the policy is breached.
The person who has made the posting or blog will be liable for a breach of the law resulting from the use of social media, of course.
However, if a blogger or poster breaks the law in the course of employment, the employer may be vicariously liable for the actions of the employee. “In the course of employment“ means that the wrongful act has been authorised by the employer, or that the employee is carrying out obligations which are broadly within the scope of their employment, but in an inappropriate way.
Internet Service Providers (ISPs), in this context the host of the social media platform, are not generally responsible for the actions of their users. They will not be liable for transmitting or temporarily storing illegal material, provided that they did not initiate or modify the transmissions, select the receivers, or select or modify the information, and when they are made aware of the offending information or illegal activity, they do remove it promptly, or disable access to it. They have no general obligation to monitor content. They are a “mere conduit“ in this passive role as an intermediary.
Identifying anonymous bloggers
Illegal comments, postings and other communications on social media platforms may be made anonymously. The identity of the poster or blogger may be established through legal action.
New legal principles specific to social media are being established
The normal legal procedure for finding out information which is not known, is by applying to the court for a Norwich Pharmacal order. This is most commonly used to require the respondent to identify the proper defendant to an action, or to disclose documents or obtain information to make a claim. It can therefore be used to compel an ISP to identify the defendant from the unique “IP address“, that is, the internet protocol address of the person who is posting or otherwise using electronic media, or at least of the computer used.
This area of law is evolving
In one case an imposter blog was set up on Twitter, with messages containing markedly different content that the genuine blogger
THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – APRIL 2012
would never have written. The genuine blogger obtained an order which required the anonymous person to identify himself, combined with an order to stop further copyright infringement or message posting on Twitter. The court permitted the order in this case to be served on the anonymous blogger by means of Twitter’s direct messaging feature itself.
In another case, a mobile containing private photographs was stolen, and the victim was contacted on Facebook and harassed. But she did not know who was dealing electronically in the material.
Here it was found that the technology being used was not conventional downloading by one individual from a single server. It was a file sharing protocol (BitTorrent) used for distributing large data volumes over the internet. A number of users join other users to download and upload pieces of files from each other simultaneously. The files are then distributed as normal, by means of web pages, emails or mobile phones.
Technically the IP addresses of all the computers helping to share the images could be identified. An injunction to delete the files, and to stop distributing the images, on the grounds of a right of privacy and to end the harassment, was granted against “Persons unknown“, identified as being any person who possessed any of the files containing the images. They could subsequently be traced and served with the order.
So the law is developing to deal with social media offences. Legislation and case law relevant for social media will continue to increase and change.
Details: Rachel Burnett email@example.com
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