As the use of Social Media has exploded in recent years, the legal envelope in terms of what content is acceptable and what should be either actionable or has been pushed to breaking point.
Trolls
The use of Twitter by “Trolls”, as highlighted by the BBC’s Richard Bacon in his program for the BBC and also by the conviction of Louise Mensch’s “Troll” back in 2012, while very distressing for those who receive such tweets, highlights an issue over the effective “policing” of Twitter by the authorities. The difficulty stems from Twitter broadcasting statements that are made on it so widely. An individual with a Facebook account can update their status and limit where it will be shown, whether to all of their friends or just a select few should they wish. However Twitter is the equivalent of standing in a city – centre with a megaphone and shouting out a statement that anyone in earshot can hear. You have no control over how far afield that Tweet may be seen, or how it may be misinterpreted as a result.
The Doncaster Airport case
The “Doncaster Airport Tweeter” Paul Chambers found this out to his cost when he sent his now infamous Tweet threatening to blow the airport up due to its closure from heavy snow. He has successfully appealed his conviction, but arguably both the Police and the Judiciary fundamentally misunderstood how Twitter operates, consistently referring to the tweet as a “message” which it certainly is not. It seems that the magistrate and the Crown Court Judge who heard the first Appeal felt that the tweet should have been regarded in the same light as a coded message or threat against the airport, failing to appreciate that the tweet, while in retrospect not being a very sensible thing to have sent, did not constitute a clear or serious threat to the security of the airport.
Mr Chambers sent a tweet during the heavy snow on January 2012 that head led to the closure of Doncaster Airport. It read: “C***! Robin Hood Airport is closed. You’ve got a week and a bit to get your s*** together, otherwise I’m blowing the airport sky high!” Five days after the tweet had been posted, it was spotted on Twitter by an employee at Doncaster Airport who reported it. Chambers, 28, was fined £385 and ordered to pay £600 costs at Doncaster Magistrates’ Court in May 2010 after being convicted of sending “a message of a menacing character”, contrary to provisions of the 2003 Communications Act. Chambers had appealed the conviction, but it was upheld in the Crown Court in November 2010, with Crown Court Judge Jacqueline Davies finding that the tweet was ”clearly menacing” and that airport staff were sufficiently concerned to report it. However was the message really an indication of potential terrorist activity and not, as Mr Chambers continued to state, just a joke in the heat of the moment?
Chambers subsequently received support from comedians Stephen Fry and Al Murray, the “Pub Landlord” who were concerned about the freedom of speech implications that the conviction had created. If a message like that from Mr Chambers, which was clearly intended to be a joke, were taken literally, it could limit the ability of any user to express themselves freely on Twitter. It could also have implications in the physical world. If Mr Chambers had made his remark in a bar instead of on Twitter, could he have also received a conviction?
The Court may have originally misunderstood how Twitter itself operated, with the tweet being occasionally referred to as a “message”. However a tweet is not a direct message. It is the equivalent to taking a megaphone to the top of a tall building in a city centre and shouting a statement as loudly as possible, with no clear indication as to precisely who has heard it. In this instance, the message was not noticed by Mr Chambers 600 followers at the time it was sent, but was only identified subsequently by the Airport employee who was most likely searching Twitter in order to identify tweets about the airport.
When the Appeal hearing took place, Lord Chief Justice Judge heard the evidence from Mr Chambers Counsel, John Cooper QC, and listened to the case to suggest that there were implications for the freedom of speech and freedom of expression surrounding this conviction. In making this decision it appears that he was indeed persuaded as to these arguments and to the implications that would have led from the original conviction being upheld.
The Court of Appeal’s decision is an important one from the perspective of the evolving jurisprudence surrounding the use of Social Media networks which are ultimately governed by the EU Data Protection Regulations 1995 which are now almost twenty years old. The proposed 2012 regulations could have a significant impact on the use of social media. In the meantime, decisions like this are significant in understanding what ultimately the best practice is in using social media sites like Twitter. After all, Mr Zuckerberg was only 11 when the EU Data Protection Regulations 1995 came into force…..
In an effort to bring clarity to this area the Director of Public Prosecutions has issued guidelines as part of a Consultative exercise on the law relating to social media communications.
10 Legal Issues to be aware of when using Social Media
1. Defamation
The test: If a tweet or post online lowers a person’s standing “in the estimation of right-thinking members of society” it will breach the law of libel. This may occur where a tweet causes a person to be exposed to “hatred, ridicule, or contempt”, encourages exclusion of that person from society or imputes a lack of professional skill or efficiency.
2. Harassment
The test: Statements online that the “reasonable person” would conclude cause alarm or distress may amount to harassment
The Protection from Harrassment Act 1997 provides that “if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment”, it is harassment.
Two or more tweets or posts would be necessary for a claim of harassment to be made, as it involves a ‘course of conduct’. Harassing statements online could result in a claim for damages for anxiety or financial loss, fines or imprisonment for up to six months.
3. Malicious Statement
Posts or tweets made within the intention of damaging another’s business, goods or services through false statements, or which are reckless with the truth as to another’s business, goods or services will offend the law against malicious falsehood. A maliciously false statement could result in a claim for damages for loss and for further compensation for causing distress and “hurt feelings”.
The test: False tweets or posts with the intent to injure another’s commercial interests, or recklessness as to the truth, will amount to malicious falsehood
4. Menacing statements online
The test: If a tweet or post could create fear or apprehension in the minds of anyone who may reasonably be expected to see it the tweet could be considered a menace and an offence under the Communications Act
A tweet or post that is grossly offensive, or of an indecent, obscene or menacing character, will offend the Communications Act 2003. The Crown Court considered Paul Chambers’ tweet “… I am blowing the airport sky high” to be menacing, however the Appeal Court overturned its decision.
A tweet or post that is indecent, obscene or menacing in character could result in a fine or a prison sentence of up to six months.
5. Deceptive & Misrepresentative statements online
The test: Is the tweet or post deceptive in nature or likely to deceive?
A tweet or post containing a false statement that induces another person to act on it may offend laws against deceit and the making of misrepresentations. A duty may also arise for a professional or other skilled person not to make careless tweets or posts. Misleading commercial communications may offend either the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and industry based advertising rules. Untrue tweets or posts in a commercial context can result in damages claims and prison sentences of up to two years.
6. Impersonating Tweets or Posts
The test: Misleading or an untrue representation as to a person’s identity on Social Media could amount to fraud
The Fraud Act 2006 protects against fraudulent activities. An impersonator who opens a social media account could be exposed to a claim for fraud if the person who has been impersonated suffers loss or damage as a result of the impersonation. A claim for fraud can result in criminal charges with a penalty of up to 10 years imprisonment and fines.
7. Threatening Statements online
The test: Generally, an intention to cause harm or intimidation may offend either criminal or civil wrong laws.
A tweet could amount to an assault if the person to whom it was directed has a genuine belief that physical harm is imminent. Criminal sanctions would apply in these cases. A tweet could also amount to intimidation if the tweeter makes a threat to engage in unlawful conduct (for example, violence, destroying property or in some circumstances breaching contractual obligations), which coerces another person into doing something for which they suffer loss or damage. The tweet must however be more than “idle abuse” to offend the law of intimidation. An intimidating tweet could result in a claim for compensation for loss or damages suffered.
8. Statements online revealing personal or confidential information
The test: Tweets or posts revealing personal details about another person without their consent may breach data protection laws.
There is a risk that data protection laws may be breached if consent is not obtained before revealing another person’s personal information. The penalty for breaching data protection laws vary across Europe. In the UK, a breach of data protection laws may result in fines and criminal convictions.
Particularly in the employer-employee context, a person may be bound to keep information of another confidential. A tweet or post breaching any such obligation could result in a claim for damages or an account of profits for any income made as resulting from the exposed information.
9. Copied statements online
The test: A tweet that reproduces the work of another without consent will offend copyright law if that work gives evidence of another’s creative choices in arranging words, images or sounds.
A tweet or post could offend copyright law if it reproduces even part of an isolated sentence from a copyright work.
The European Court of Justice - there must be an assessment of whether or not an author has exercised creative choices in the form of intellectual effort in arranging words, images or sounds. Claims for damages for loss suffered and criminal charges with prison sentences of up to two years can result from a tweet or post that infringes copyright law.
10. Branded Tweets, Posts and Hashtags
The test: Does the use of a hashtag create a likelihood of association or confusion with the products or services of a trade mark owner?
Hashtags, marked with the # symbol, are used in order to alert users to relevant conversations taking place on Twitter. There is a risk, however, that combining a hashtag with the trade mark of another person could result in trade mark infringement. Trade mark law generally protects the trade mark owner against use of its trade mark without permission in a way that may create a likelihood of confusion or association with other similar products or services. Use of hashtags in these circumstances potentially could result in a damages claim.
Social Media and IT issues to consider in Employment Contracts and Staff Handbooks
If an employer wishes to exercise any proprietary ownership over an employees social media contacts collected via networks such as LinkedIn or followers accrued on Twitter, this should be made quite clear as an express term in the contract of employment. This should also be brought to the attention of the employee at the commencement of the employment period that they will be expected to hand over details of the contacts that they have made during the course of their employment to their employer at the conclusion of their employment.
If appropriate, the employer should set up any social media account, such as a Twitter account, and hand over the log in and password information to the employee. For added security, the employer can request that the employee update a central login and password register should there be any changes to the security of the account. In any event, good practice dictates that social media account passwords should be changed every three months and immediately in the event of any suspicious activity, hacking or phising attacks.
Consequently the employer retains control of the corporate social media account and hence control over any contacts or followers acquired by the employee during the course of their employment. By retaining log – in and password information the onus is also removed from the employee providing this information at the conclusion of the employment and instead the employee has a ongoing duty to inform the employer of any log – in or password changes for the duration of the employment instead.
A clear workplace social media policy should also be used if the employer is wanting their employees to actively engage on social media for the benefit of the business. A clear policy should be in place, ideally in the employee handbook. Again this should be brought to the attention of all employees at the commencement of their employment. If specific sites such as LinkedIn and Twitter are encouraged to be used for business purposes, this should be quite explicit, as should any prohibition on more personal sites such as Facebook.
Any rules or guidance on how accounts should be updated and what content should be used should also be in the handbook. If employees are to update sites with articles and news from certain sources, this should be made clear to them at the outset so that corporate social media accounts are not updated with content that could be deemed to be unsuitable by the employer. It may be necessary to prohibit employees from updating corporate social media feeds from their own devices such as smart phones and tablets if there is a risk that the device may be left unsecured and could be updated by another individual.
Employers should also consider whether they should have policies in place to govern the growing trend of “Bring your Own Device” (BYOD) whereby employees work on their own tablets and smart phones, sending and receiving email and opening documents that could all be confidential to the business or to clients. Unless steps are taken to ensure that email encryption and security is in place to ensure the integrity of the devices, it may be necessary to prohibit employees from accessing work emails and documents from equipment that has not been provided for this purpose by the employer.
