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martes, 14 de junio de 2011

The case for self-regulation of social media

If ever there was a subject which has almost been blogged to death, it must be the CTB v News Groupinjunction story, with a bit of disclosure action against Unknown Persons thrown in for good measure.
Fortunately, the lawyerly inclusion of the word "almost" gives me wriggle room to give the horse one last flog.
The big beasts of legal journalism have been interviewing the big beasts of the judiciary and the Bar on this very topic. Joshua Rozenberg scooped an interview with the Attorney General for Law in Action in which the AG made the not very surprising statement that he reserved the right to bring contempt proceedings against Twitter users who ignore court orders (in other news, police chiefs say they reserve the right to arrest people who commit crime). And The Lawyer interviewed Hugh Tomlinson QC (in a fascinatingly wide-ranging interview by Katy Dowell) who said quite rightly that Twitter cannot assume the role of the Court of Appeal.
Over on the INFORRM blog, I also enjoyed Dominic Crossley's amusing and acerbic assessment of the winners (no-one) and the losers (the rest) in the whole saga.
And of course the subject has also been debated by the doyens of legal podcasting, Charon QC, David Allen Green and Carl Gardner, who I think are of the same view espoused by the big beasts referred to above: namely that when Dicey wrote about the rule of law, he didn't have trial by tweeting in mind.
One specific issue arising out of CTB is to what extent the disclosure order served on Twitter is enforceable. The general view of legal commentators is that the order (and indeed any injunction issued by an English court) will not bind Twitter for so long as Twitter has no legal presence in the UK. The same point has been made in relation to the enforceability of any injunction againt Twitter users based outside of the UK.
So what? Isn't this just an issue for navel-gazing lawyers?
Well this is so what. Social media is not simply causing a legal problem. It is causing a societal problem. I don't want to live in a society where the rule of the mob applies. And the mass-abuse of a court order is, frankly, the rule of the mob. Admittedly, the CTB facts are hardly conducive to an outpouring of sympathy for CTB finding himself subject to the rule of this particular mob.
But it's not difficult to imagine a better set of facts, even in the football context. Anyone remember David Jones? The man who was falsely accused of child abuse when the manager of Southampton Football Club, who lost his job and who was completely - underlined and in capitals - completely - cleared of any wrongdoing at trial? What if Jones had sought an order protecting his anonymity pending the outcome of his trial (maybe he did, I cannot recall) and that had been ignored by the Twitterati acting as judge, jury and jailor? Or by a Scottish newspaper pulling a cute publicity stunt north of the border? Mass-tweeting on so-called freedom of expression grounds wouldn't look so clever then, would it?
Sorry, but the abuse of social media platforms in violation of the law is an issue which I think needs dealing with. The question is, how?
Ideally, some form of cross-border legislation is required to resolve this issue. Easier said than done, of course, and will need the brains of big beasts such as Hugh Tomlinson et al rather than my own to come up with a workable solution. Whilst the Attorney General has announced a select committee review, I don't see how that can result in an outcome which overcomes any jurisdictional enforcement issues. And by the time a cross-border legislative framework had been designed, agreed and implemented, Facebook and Twitter will likely be consigned to the history books anyway.
So, as an alternative to legislation, let me hesitantly float the idea of self-regulation. I say hesitantly because as a newspaper lawyer I don't want to be seen as trying to imply that the PCC has been a model for perfect self-regulation in recent years. So bear with me.
To see why this might work, ask yourselves some questions (the answers are mine). Do we want a society where the court of public opinion and not a court of law determines what is lawful? No. Is it morally objectionable if platforms such as Twitter fail to protect users who breach the law? No (*and see more below on that point). Can English court orders necessarily be enforced against organisations without a place of business in the UK? No. Is it acceptable that one set of rules apply to traditional media organisations in England and Wales but not to technology platforms and users outside of the UK? No. And will it be easy or quick to achieve a US/Asian/European cross-border legislative regime which deals with these problems? Not in our lifetime. Might self-regulation be a way of addressing these issues? Maybe.
The rationale for how this might work contains sufficient material for another blog post. But hold this thought: if Twitter, Facebook and LinkedIn, could be persuaded to sign-up to a code of self-regulation, wouldn't that force other platforms to follow? Of course, there is a big IF in that question. But these are not renegade start-up organisations. They are serious high valuation corporates with legal, governance, social and ethical obligations to consider. Would it really be that harmful for them to agree a Code of Best Practice which involved - in prescribed circumstances based on legal principles - them voluntarily taking down pages, notifying users of their obligations, requiring genuine identity authentication prior to setting up an account, or even *gasp* handing over user details to legal or regulatory authorities (but not without making the user aware first giving them the right to resist)?
I am flinching that how this suggestion might go down with the Twitterati. I'll be told I don't 'get' the internet or the idea of the free web. Well, I do actually. What I don't 'get' is why, putting it bluntly, there seems to be a view that breaking a law online is not akin to breaking it offline. An important feature of the English justice system is that it generally offers litigants two goes at appealing a wrong decision. The court of public opinion on Twitter doesn't offer a right of appeal. Its decisions are final and binding. Maybe the Twitterati called it right on CTB (although my view is that they did not). But they will eventually call it wrong and someone will get unfairly hurt, reputationally or maybe even worse, physically.
It's a bit risky putting forward a solution to this problem. Look what happened to the Chap in the Cap, as Amanda Bancroft memorably called him (well, almost - Amanda's phraseology was memorably more colourful...). But surely self-regulation would be better than no enforceable regulation? Discuss.
To conclude, a quick rider on the asterisked point above. Does anyone except the naive genuinely expect Twitter to behave as if it owes its users some kind of ethical or moral duty to protect their identity? They don't. The Twitter-user relationship is not akin to the newspaper-source relationship. Forget Article 10 or any ethical pretensions in this context. The obligation that Twitter owes its users is limited to whatever is set out in the Twitter terms of use.
Right, I'm off to buy a tin hat.
Tim Bratton is general counsel of the Financial Times and blogs at thelegalbratblawgClick here to follow Tim on Twitter.

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