Saturday, 8 June 2013

Hashtags and Timelines: New Challenges for Legislators

There are 10 million UK Twitter users, and a vast majority of these have never penned an article for a broadsheet newspaper. After all, it is easier to type in 140 characters on your flight being delayed than it is to construct a scathing exposé of child labour. But 140 characters can cause a great deal of trouble.

As far as the law is concerned a Twitter message, or tweet, is a publication. Even a private tweet can be re-tweeted, or otherwise be re-broadcast and published elsewhere online or in print.  When tweeting or re-tweeting a person is as liable for the content of that message as they would be if they were writing for the pages of any national publication. This means that any Twitter user is open to be sued if the content of the tweet is explicitly libellous, or if defamatory meaning can be inferred.

With the sudden emergence of social media the law is forced to respond quickly to an ever-changing condition; Internet users have a new-found freedom to explore; and everyone has something new to learn about the way it all works. But what happens when new laws are adapted based on legislation created in an era during which our wildest dreams could not imagine what was to be, and when those involved in creating and upholding the law do not fully understand what they are working with? This is what we will briefly explore here.

Misunderstanding Social Media

Despite the popularity of social media and the numerous cases that have arisen over the years, the intricacies of social media are still something that courts are finding hard to wrap their heads around. This has resulted in a variety of legislation being invoked and judgements relying on erroneous technological explanations. Liam Stacey of Swansea was jailed for 56 days having been found guilty of an offence under s4A of the Public Order Act 1986. He tweeted racially aggravated abuse of footballer Fabrice Muamba, who had suffered a cardiac arrest on the pitch during a televised match and was clinically dead for over an hour. Stacey appealed this decision, and it is particularly interesting to look at how Twitter is described in the dismissal judgement. One of the many tweets discussed in the case ended in “LOL fuck Muamba he’s dead !!! #Haha”. It is then noted, by way of explanation to the court[i]:

“LOL is accepted to mean laugh out loud. As well as posting this message on his own account the Appellant linked the message to a site call (sic) Ha Ha. That meant that what he had written was capable of being read not just by those persons who followed the Appellant's Twitter account but by any other user of Twitter.”

In reality, the tweet did not link to any external site. #Haha is a hashtag. A hashtag is a metadata tag used as an identifying grouping tool with a # prefix that allows a user to label their tweet with a keyword that can then be used to locate related messages on that subject, although any word can be searched for with the same effect regardless of whether it has been prefixed with a # or not[ii]. Unless a Twitter user has a private account, all tweets are public to the world and can be accessed irrespective of whether a person has an account or not; using a hashtag does not alter this. A useful hashtag will often be more specific, and include an event or known abbreviation, so that other users may search for it and know what they expect to find. For instance, #Olympics2012 for the London games, #LordsReform for the Parliamentary debate on the Lords Reform, or #BBCqt for BBC Question Time. In Stacey’s case, and in terms of the audience his tweet could potentially reach, it may have been more relevant that he mentioned Fabrice Muamba by name than that he included such a generic hashtag as users would be more likely to search for “Muamba” than for “#Haha”.

Whilst it is unlikely that a better understanding of how Twitter and hashtags work could have changed the outcome of proceedings for Stacey in any significant manner it is still surprising that such mainstream technology, with such explosive adherence, can be so fundamentally misunderstood in our courts in a way that they may not even be aware. Maybe it is true that lawyers hate technology[iii], or simply that over the ages they have feared it for a variety of reasons[iv]; it may be that it develops too quickly or that it requires too much specialised time and attention, but social media and in particular social media on mobile technology are rapidly becoming a part of everything we do and this is crucial in everything from education to commerce, and from personal safety to national security[v]. In seeking a just outcome in a criminal court we must surely owe it to ourselves to ensure that any objectively verifiable facts are accurate. Although at times it may be impossible to establish all facts with certainty, technicalities should be ascertainable and correct. Simply because in one example the difference made may be little this does not excuse a tolerance of error overall or for the future.

Outdated Legislation?

"[The internet] does not trade in gossip. It simply publishes it online, conveys it on Facebook, uploads it onto Youtube, tweets and re-tweets it. It is likely that new [legal norms] and new laws will need to be developed."

These are recent words from Lord Justice Leverson[vi] following the recent and still much-debated publication of his 2000-page report. Whilst the purpose of the Leverson report[vii] is not to explore the law’s relationship with the public’s use of social networks, there is acknowledgement of the astonishing speed at which a message might be propagated, of the problems that we are currently facing, and that we are likely to continue to face in terms of regulating these services, identifying relevant users, and holding them to account when they are suspected of breaching the law.

A recent article[viii] published by the Society for Computers & Law (SCL) helps explain why we ought to be looking not only at our existing laws, but also at their origins. Offenders are often trialled based on offences created under legislation that pre-dates the public and widespread availability of the Internet and the social media craze we are experiencing. There seems also to be little consistency as to which Act is invoked, which in turn raises other concerns with rule of law issues regarding the predictability and certainty of the law and its application. Even the most contemporary piece of  legislation used for these proceedings, such as s127 of the Communications Act 2003, whilst seemingly drafted in an era more adapted to our online behaviour, is essentially a copy of an earlier act of 1984 (predating public access to the Internet)[ix] designed for regulating one-to-one communication by post or telephone.

In the 2003 act the earlier words “public telecommunication system” (PCN) have been updated to “public electronic communications network”. The SCL article draws our attention to an analysis by LJ Bingham[x] of the purpose of s127 as being:  'not to protect people against receipt of unsolicited messages which they may find seriously objectionable' but 'to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society'. With this in mind, we can see that the use of a private service such as Twitter may not have been within the original scope of the Act.

Although it is not unusual for new Statutes and case-law to borrow from existing legislation in order to expand and provide for new developments, Professor of E-Governance Lilian Edwards explains[xi] that all manner of problems may arise as a consequence of categorising Twitter and other social media in the same way as public services. One reason that is mentioned is that such legistlation goes beyond what is necessary in a democratic society in order to limit freedom of expression. Another reason is that PCNs are subject to far stricter regulations, including supervision by Ofcom which may simply not be practicable in a world of user-generated content at the rate of 200 million tweets per day[xii]. from across the world. In fact, enforcing content-policing duties on this rate of activity may not be worthwhile for Twitter in the long-run, and it could potentially prove too onerous to maintain in terms of time, money, and legal expenses. In light of the many social and political benefits that have grown from our current models of social media, this would be a great loss.

In an attempt to address the existing uncertainty, the Crown Prosecution Service (CPS) has published guidelines[xiii] on how to approach different communications offences, indicating which legislation may be appropriate for separate groups of offences. The guidelines mention acts such as the aforementioned Communications Act 2003, the Postal Services Act 2000, and the Malicious Communications Act 1988, and they refer to existing Public Order Offences to be used where applicable. As we noted with the case of R v Stacey other acts have also been used, such as the Crime and Disorder Act 1998, but the Protection from Harassment Act 1997 and the Computer Misuse Act 1990, amongst others, have also been used.
The problem does not end here, nor is it limited to the use of Twitter. Facebook user Mitchell Stancombe was charged and sentenced to 3 years in jail following an offence under s.44 of the Serious Crime Act 2007 when he posted “When are we going to start the Southampton riots then?” on his Timeline[xiv] along with two other posts. The presiding Judge stated that this was a “deterrent sentence to demonstrate this type of conduct will not be tolerated by the courts”. Another Facebook user, Matthew Woods, was sentenced to 12 weeks in jail for offences under s127 when he posted “jokes” about missing 5-year-old April Jones[xv]; the sentence, much shorter than Stancombe's, was explained by magistrate Bill Hudson:
"the reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive."[xvi]
The lack of certainty regarding which statute will be applied to the offence brings with it a series of other concerns. Sentencing is usually determined as a function of the seriousness of a crime, the level of harm to the victim, an existing criminal record, personal circumstances, and a guilty plea, amongst other things[xvii]. It should then become apparent that if similar cases are being tried under different offences, they may be considered to have varying degrees of seriousness and consequently be punished by custodial sentences of entirely different lengths, if custodial sentences are used at all. It is also questionable whether “public outrage” and “abhorrence [...] in society”, as mentioned above, should be a deciding factor at all (R v SSHD ex. p. Venables [1997] 3 WLR 23).

It is unclear what steps courts are taking to homogenise the penalties for similar offences perpetrated on social media. However, to deal with the existence of issues arising from prosecution, the CPS has also published further interim guidelines[xviii] on prosecuting cases involving communications sent via social media. The interim guidelines begin to address the issues covered in this article, and that are not already covered by the communications offences guidelines, and they are part of a wider consultation process with a deadline of March 2013. Once finalized, these guidelines may still not be enough. This is the point made by the SCL site and magazine editor, Laurence Eastham, who argues that what is really necessary is better law, and a long hard debate and investigation about what this should entail, and how to ensure that the needs of this ever-changing medium are met. This may take the form of stricter or more specific tailored legislation, or it may involve a scaling back of the restrictions to liberty and the freedom to offend, with a heavier reliance on legislation designed to combat harassment and the spread of fear such as ‘falsely shouting fire in a crowded theatre’[xix].

Ultimately, we must conclude that as users of social media and other communication networks, we should be aware of our responsibilities and the issues that arise through the use of these services as they continue to shape the way we communicate with each other and the world. We must be aware that it is impossible to predict with certainty the outcome of our online actions and we must be aware that despite the illusion of privacy we must proceed with caution when committing our thoughts publicly to writing, and perhaps it may be advisable that as with general personal conduct, a modicum of restraint and respect for others should be observed.

There is also the natural counterpart to this conclusion: In order to defend our liberty and freedom of conscience and expression, we should be aware of the growing social and moral need for these issues to be properly and formally addressed so that the law can be unambiguous and thus fairly applied. It is not enough that we bite our tongues indefinitely, in fear of how the law may be applied to what might otherwise be a meaningless remark; mere guidelines for prosecutors are not sufficient and thus this is where the call lies for clear, accessible and binding laws.

17 December, 2012
By Margarida Santos Silva – GDL PT Distance Learning, second year. mapgie.co.uk

[i] http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/appeal-judgment-r-v-stacey.pdf
[ii] http://twitter.pbworks.com/w/page/1779812/Hashtags
[iii] http://troubleahead.co.uk/2012/03/20/why-do-lawyers-hate-technology/
[iv] http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2947&context=lcp
[v] http://legalcurrent.com/2012/11/21/washington-ideas-forum-social-media-mobile-technology-and-our-changing-world/
[vi] http://www.telegraph.co.uk/news/uknews/leveson-inquiry/9728803/Lord-Justice-Leveson-calls-for-new-laws-to-curb-mob-rule-on-the-internet.html
[vii] http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_i.pdf
[viii] http://www.scl.org/site.aspx?i=ed28102
[ix] s43 of the Telecommunications Act 1984
[x] In DPP v Collins [2006] UKHL 40
[xi] http://www.scl.org/site.aspx?i=ed28102 [xii] 2011 data, http://blog.twitter.com/2011/08/your-world-more-connected.html
[xiii] http://www.cps.gov.uk/legal/a_to_c/communications_offences/#an01
[xiv] Facebook “timelines” (also called “walls”, or “profiles”) are where user content such as statuses, links, and photos are shared for friends to see.
[xv] http://www.guardian.co.uk/commentisfree/2012/oct/12/matthew-woods-support-paul-chambers
[xvi] http://www.bbc.co.uk/news/uk-england-lancashire-19869710
[xvii] http://sentencingcouncil.judiciary.gov.uk/sentencing/sentences-worked-out.htm
[xviii] http://www.cps.gov.uk/consultations/social_media_consultation.pdf
[xix] Schenck v. United States, 249 U.S. 47 (1919)