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When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk University of Southampton Faculty of Business & Law School of Law Libel on Twitter: An examination of the continued application of the law of defamation to govern defamatory content in the Web 2.0 age By Sarosh Hassaan Razaq Khan Thesis for the degree of Doctor of Philosophy 2015 Libel on Twitter Sarosh Hassaan Razaq Khan Abstract For the Web generation, the likes of Twitter are part and parcel of life. When people look for breaking news, they do not turn to television channels, but to Twitter. When they look for updates on sporting events, they turn first to Twitter. When they look to engage with others, they turn first to Twitter. Twitter has democratised expression. It has empowered individuals to express themselves in ways never previously available to them. Where the right to public, written expression was traditionally in the hands of a select few, it is now a right given to all individuals. It has revolutionised expression. The law of defamation was developed to address the nonconformity of the tabloid industry. Newspapers published conjecture and gossip because they appreciated that such content appealed to a significant proportion of the readership and in turn that doing so was lucrative. As a result, the modern day law of defamation was developed; a mechanism designed specifically to curb the behaviour of tabloid newspapers. While there have been debates as to the extent to which its provisions are ‘fair’, the law has been applied to the instances that it ought to have been. The law has been able to be applied. However, expression as we know it has evolved. No longer are there few newspapers publishing defamatory content. There are now thousands of individuals on Twitter, tweeting and retweeting defamatory content. The cases of Giggs and McAlpine are merely two instances of the subjects of remarks being left with little redress; having their reputations destroyed. i Libel on Twitter Sarosh Hassaan Razaq Khan The key question in this thesis is; can the law of defamation remain the mechanism by which reputations are protected from harm on Twitter? Can it remain an effective mechanism in this new context of expression? The very nature of law as a mechanism to deter a course of behaviour requires that there is fear; individuals fear that should they not act in accordance with the prescribed norm of behaviour, they will suffer some loss. If the punishment cannot be effectively enforced, the fear of punishment does not exist and in turn it is not effective as a deterrent. The analysis in this thesis reveals that this does not occur as the provisions of law when applied to actual tweets and retweets do not allow for the effective application of the deterrents. When the cases of Giggs and McAlpine are considered against the provisions of primary and secondary liability, it is evident that the law cannot provide the clarity and certainty because of the sheer volume of actors and lack of context in decision making. With the current mechanism no longer appropriate, a model that has at its core the community of individuals on Twitter developing and enforcing their own standards, is proposed in this thesis. The community is supplemented by the law and Twitter, both of which have a role. As a mechanism the comparative analysis of the emergence and growth of the ‘RT’ retweet variant and examination of the Wikipedian model of governance, makes it clear that the model could be viable, with the Giggs case used as a case study. Expression has been democratised under Twitter as we harness the power of the collective, rather than affording the opportunity to express themselves to a few select individuals. And yet, we have retained the same mechanism as we have employed in the ii Libel on Twitter Sarosh Hassaan Razaq Khan previous environment in which there were a few publishers. The mechanism proposed in this thesis is one which, at its core, seeks to harness the power of the collective to govern. It is more appropriate in this new climate of expression to ensure reputations are not unduly damaged. iii Libel on Twitter Sarosh Hassaan Razaq Khan Acknowledgements First and foremost I would like to thank my Supervisors Roksana Moore and Mark Weal. It is the result of their hard work and patience that this thesis has come together. It has not always been easy, but they have stuck by me, never letting me get down on myself. The combination of the pair having me the ying-yang I have needed to ensure that I get the guidance to drive the completion of my work. As a pair of supervisors, I couldn’t be happier with them and could not have wished for two better supervisors. It has been an honour to have been Roksana’s first Ph.D. student. She has taught me what good research is, what it takes to demonstrate a scholarly understanding of a subject area, ensuring no stone is unturned. Her dedication to ensuring the successful completion of this thesis has been unwaving, often going above and beyond what would have been expected of a supervisor. The joy and enthusiasm she has for the research was contagious and the motivation I needed to carry on going. I will certainly miss our coffee sessions that would normally consist of the first hour catching up on each other’s lives. I can truly say that after these last four years, I consider Roksana a friend above anything else, which is testament to the kind of person she is. Mark has showed me what it means to demonstrate excellent research, allowing me the freedom to explore the area as I saw fit. Rather than try and constrain the research to his desired fields, he has allowed me the opportunity find the right path for myself, with an enthusiasm for the research field that made me sure, the work was on the right path. I am also thankful top him for having shown me what it is to be a successful academic, giving me the skills and qualities necessary to excel in citing the virtues of my work to others. It is the confidence he has instilled in me above and beyond anything else, I will always be grateful for. iv Libel on Twitter Sarosh Hassaan Razaq Khan I would also like to thank the academics, support staff and fellow students of the Web Science Doctoral Training Centre. Les Carr, Catherine Pope, Susan Halford, and Leif Isaksen have all been crucial to ensuring this thesis has been completed successfully. Were it not for all of them, I would not have been able to reach the point I have. All have helped to mould me into the individual I am, empowering me with skills that have shaped this thesis. All have demonstrated enthusiasm and a passion of the research that made it easy to continue to strive for success. Seeing these faces, walking the halls of the Web Science DTC building, without fail they would stop and ask me how my research was going which has been hugely comforting. Doctoral research, by its very nature is a very isolated, individual endeavour, but they have done their upmost to ensure this has not been the case. I would also like to thank Dame Wendy Hall who made the entire DTC come together. Were it not for her efforts, I would not have had the opportunity to have explored the research in the way that I wanted; I would not have been able to seek to try and demonstrate the relationship between research methods that makes this thesis stand out. I have always wanted to do a PhD at some point in my life, but always thought that my legal thinking might be too left-field for legal scholarship; thinking there is more to law, than just law. Well the DTC has allowed me to explore this area and for this opportunity I can only say thank you to Wendy. At this juncture I would also like to that the EPSRC whose generous funding allowed me to really explore the depths and nuisances of the research, in full concentration. Their generous funding has been the result of their appreciation in the value and importance of the research being carried out which has allowed me to carry v Libel on Twitter Sarosh Hassaan Razaq Khan and explore the research, fully in the knowledge of its value. Their support has not allowed me consider anything but successfully completing this thesis. Had it not been for their funding, I do not think I would have been able to do a PhD. The academics of the Faculty of Business and Law and in particular, the School of Law, all deserve my thanks too. All of the academics have been nothing but enthusiastic when I have spoken of my research, providing me with the confidence and assurance to keep on persevering.