Social Media Responsibility and Liability - a UK Perspective Research project presented in partial fulfilment of the requirements for the degree of Master of Laws at Tilburg University. Supervisor: Dr. T. Timan Student: John Patrick Waterson Second reader: M. Galic ANR: 906940 August 2016 1 Index 1 Introduction 4 1 1 What is the Problem? 4 1 1 1 Case Study 1 5 1 1 2 Case Study 2 5 1 1 3 Case Study 3 5 1 2 Why is this Relevant? 6 1 3 Research Question 7 1 4 Why is this a Legal and Societal Problem 8 2 Definitions 9 2 1 Trolling 9 2 1 1 Section 127 of the Communications Act 10 2 1 2 Section 4A Public Order Act 11 2 1 3 Section 1(a), (b) Protection from Harassment Act 11 2 1 4 Chambers v Director of Public Prosecutions 12 2 1 5 Discussion 15 2 2 Defamation: Libel 16 2 2 1 Test for Defamation 17 2 2 2 Cairns v Modi 19 2 2 3 Lord McAlpine v Sally Bercow 20 2 3 Discussion 21 3 Conflicting Rights 22 3 1 Freedom of Speech 22 3 2 Trolling and Freedom of Speech 24 3 3 The Goal of Punishing Defamation and Trolling and Effectiveness 25 3 3 1 Defamation 25 3 3 2 Trolling 27 2 3 4 Non-legal repercussions 28 4 Discussion of Possible Solutions and Problems 30 4 1 Jurisdiction 30 4 2 Intervention by the Social Media Networks 31 4 3 Real Name Use 33 4 4 Education 34 4 5 Self-regulation 35 4 6 Summary 36 5 Conclusion 37 Bibliography 39 3 1 Introduction 1 1 What is the problem? Social media is currently one of the most used forms of expression and communication. Users post and comment opinions and statements from behind a computer screen and this often creates a feeling of distancing from their actions. The paper will deal with two forms of conduct that can lead to liability for a social media user. The acts are called trolling and defamation of character. Trolling is the act of insulting or harassing other users on social media and defamation is the act where a person makes a statement which harms the reputation of another person. The two terms will be explained and defined in part two of the paper Social media creates the problem that users often feel distanced from their actions when placing content online. The content, though mostly harmless, can and have had serious repercussions for the users who shared the content online. Some users may feel distanced from the individuals they target on social media, through trolling, and they make statements that they might know is wrong but feel that they can make this statement because of the distancing the internet creates. In the case of defamation it is the fact that users often do not realise that what they say could be interpreted as defamatory or that they do not think of the repercussions until it is too late. This could become a problem for society at large since users of social media might break the law or create legal repercussions for themselves without understanding that what they are doing is against the law. The users are often also under the impression that for whatever reason the law cannot touch them because they cannot be held liable for what they write on the internet. The evidence from the courts though shows that users may potentially be held liable for the content that they place on the internet. The intention of this thesis is to examine real life case studies regarding social media conduct that have had real life legal and other implications for the persons involved. The paper will use three case studies to approach the questions regarding whether statements made on social media can lead to civil or criminal prosecution. The paper will also look at whether the current legal system is effective and what could be done to educate or protect the general public from such potential liability. The three case studies that will be discussed will be given a short introduction after which the research question and methodology will be made clear. The reason why the mentioned cases will be examined, is because they are illustrations of trolling and defamation on social media networks. 4 1 1 1 Case study 1 The first case study deals with the case of Mr Paul Chambers. Mr Chambers used Twitter to make a satirical post regarding Robin Hood Airport, in which he mock threatened to bomb the airport if it was not open at the time of his flight the following week. The airport had been closed because of snow and weather problems. Mr Chambers was arrested and fined in terms section 127 of the Communications Act 2003. The act makes it a criminal offence to send offensive, indecent, obscene or menacing messages over public electronic communications networks. The case was appealed by Mr Chambers and, on the 27th of July 2012, he was found not guilty of the offense since the message was not intended to be threatening.1 1 1 2 Case Study 2 The second case deals with the incident of Brenda Leyland, a 63 year old woman, who sent Twitter messages to the Twitter account of the McCann family. The McCann family are well known in the UK because of the high profile case where their daughter had disappeared eight years ago. A reporter for Sky News had received information about the woman, from a source in Scotland Yard, because she had been investigated along with a number of other individuals who had sent threatening or rude “tweets” to the McCann’s. The reporter from Sky News went to Ms Leyland’s house and approached her on the street. The reporter made it clear that the authorities were aware of her and questioned why she was sending the offensive “tweets” to the McCann family. Three days after the confrontation Ms Leyland was found dead, she had committed suicide.2 1 1 3 Case Study 3 The third case deals with Lord McAlpine, a British politician, who was “named” on Twitter by many people as being the unnamed politician who was under investigation for a child sex abuse scandal in the UK. McAlpine decided to institute lilbel action (the written word version of Defamation) against Twitter users who stated that he is, or might be, the politician involved in the child sex abuse investigation. Lord McAlpine sued a number of individuals on Twitter including Sally Bercow, the wife of another UK politician. The British High Court ruled that the “tweets”, referring to Lord McAlpine as being the suspect in the 1 Paul Chambers v Director of Public Prosecutions [2012] EWHC 2157 2 Jennifer Smith “Sky TV reporter ‘devastated’ by suicide of McCann Twitter troll days after he exposed her, inquest hears” (20-03-02015) Dailymail <http://www.dailymail.co.uk/news/article-3004290/Sky-TV- reporter-devastated-suicide-McCann-Twitter-troll-days-exposed-inquest-hears.html> (accessed 24-06- 2016) Anonymous “McCann ‘Twitter troll’ Brenda Leyland ‘killed herself’” (20-03-2015) BBC News <http://www.bbc.com/news/uk-england-leicestershire-31982088> (accessed 24-06-2016) 5 investigation were defamatory, a libel, and thus found that Mrs Bercow had defamed Lord McAlpine.3 1 2 Why is this relevant? These three cases illustrate how the use of social media can create un-intended consequences for the users of social media. This paper will look at how the UK has dealt with cases where social media caused real life legal or other consequences for its users. The reason why the UK will be examined is because the UK has already had legislation in place that could be used against those who abuse social media and there has been a number of cases that have gone through the courts. There have been enough court cases to illustrate how the situation is to be dealt with and enough high profile cases that have been reported on. The use of social media since it has become the new norm with, for instance, platforms such as Facebook alone having more than 1 billion users4. Twitter has even been used by a United States Presidential candidate to announce their candidacy on Twitter.5 It is clearly a very topical issue that should to be examined. Social media has led to the creation of many new social and legal avenues that could become problematic. From the new form of vigilantism on Facebook or Twitter, to making jokes that can get one arrested. The reason one has to consider the consequences of the inappropriate use of social media is the fact that for the foreseeable future, social media is here to stay. It is used by millions around the world and as such can and has had a considerable impact on the daily lives of the general public. This means that one cannot avoid looking at some of the possible negative consequences that can come from the use of social media. Because it is used by an ever growing part of the world’s population, there will and have been situations where people have acted in a way that is socially and sometimes legally unacceptable. The general public need to be aware of these potential consequences. Thus one must find a way to educate the public to understand what is acceptable, and what is not, on social media and to understand that there can be consequences to their actions on the internet. One of the primary problems with social media is the fact that many users do not see it as a public forum and that users do not realise how easily something can go viral.