Steve Kuncewicz - head of IP & Media & associate at Bermans: Content Warning – Social Media, Ethics and The Law...

For those that don’t know me, social media is a big part of my working and personal life; those that do know me are probably sick of hearing me talk about it. Either way, the fact that social media has now become part of our mainstream media mix is impossible to ignore.

Think back to even five years ago and ask yourselves how many times you were watching a TV programme and noticed a hashtag in the corner of the screen to encourage you to tweet about it – now they’re pervasive and many broadcasters are looking enviously towards the elusive “second screen” of viewers who have one eye on their TV and the other glued to a tablet or smartphone.

Social media is built around the principle of engagement, but what happens when that engagement moves beyond anodyne commentary into something approaching banter, or worse, abuse?

As social media has infiltrated our consciousness, we’ve seen countless newsworthy stories dealing with what happens when commentary via social media oversteps the mark of acceptability. Of course it’s hard to draw such a line in the sand, as anyone who’s ever spent any amount of time on forums or social networks will tell you – the web has long been a haven for “trolls”, users who (in the appropriate words of Wikipedia, a long-standing bridge under which they gather) “sow(s) discord on the internet by starting arguments or upsetting people”.

It’s easy to argue that coming across a Troll simply goes with the territory of frequenting social media platforms; in fact to many it’s almost a badge of honour. Recent psychological studies have suggested that teens and younger children simply can’t appreciate that their trolling may well have real consequences over and above their being “blocked” – if you need any evidence to support that theory, I suggest (but don’t necessarily advise) mentioning either Justin Bieber or One Direction in a negative light and waiting for a response.

GQ ran a cover story on each member of One Direction to mark them edging into adulthood, leading to them receiving tweets such as “DO YOU REALIZE HOW MANY PEOPLE WANT TO CASTRATE THE PEOPLE WHO WORK FOR THIS S****Y MAGAZINE” and “GO PUNCH THOSE S***S AT GQ AND ALL THEIR BS ABOUT YOU ALL UNACCEPTABLE HARRY THEY TALK S**T ABOUT Y’ALL”. I can only apologise for the blatant abuse of caps lock and the redacted language, but you get the idea.

The false sense that what you say online has no real consequence doesn’t end there. Despite telling anyone who’ll listen that what you say and do online can be (and now frequently is) punishable in the same manner as if you said it offline, every other day brings a new example of my favourite legal cliché at work – the one witness who’ll never let a court down or fold under cross-examination (unless it’s a printout…) is a copy of your online profile.

For those of you who don’t follow the impact of the rule of law on social media, here’s a brief timeline of the major cases in which users have either been prosecuted or sued as a result of their online activity:

May 2010 When Robin Hood Airport was closed due to heavy snow, Paul Chambers tweeted 140 characters which will haunt him forever: “you’ve got a week and a bit to get your sh*t together, otherwise I’m blowing the place sky high!” Chambers meant this as a joke, but he wasn’t laughing when he was arrested for making a bomb threat and eventually charged then convicted for sending a “menacing electronic communication”. In a case which engaged free speech campaigners such as Stephen Fry, Chambers’ conviction was eventually overturned by the High Court.

March 2011 The UK’s first Twitter Libel (or “Twibel”) case saw Welsh Councillor Colin Elsbury ordered to pay £53,000 in damages and costs to a rival after wrongly suggesting that he had been removed by police from a polling station.

May 2011 Ryan Giggs’ superinjunction banning any discussion or linking of his name to an alleged affair with Imogen Thomas was spectacularly shattered by Twitter users, with MP John Hemming eventually using parliamentary privilege to name Giggs and prompting the serious debate over how social media could be effectively policed and reputations managed in a world where allegations go viral at the speed of a click.

June 2011 Joanne Fraill is convicted of contempt of court for contacting the Defendant in a trial on which she was a juror via Facebook.

March 2012 Cricketer Chris Cairns wins £90,000 in libel damages over a tweet which accused him of match-fixing.

April 2012 Twitter users name the victim of Ched Evans after his conviction of the rape of a 19-year-old girl, accusing her of “crying rape”, leading to convictions under the Sexual Offences Act 1992 despite claims that the defendants didn’t realise that they were committing an offence.

July 2012 Tom Daley receives a tweet telling him that he “let his dad down” by missing out on a medal during London 2012, leading to a 17-year old being charged with harassment despite his attempts to apologise.

April 2013 Facebook users who published photographs showing James Bulger’s killers receive suspended sentences for contempt of court by breaching the High Court injunction banning publication of any information claiming to identify Venables and Thompson.

May 2013 After allegations via Twitter linking him obliquely to child sex abuse, Lord McAlpine takes action against Sally Bercow, who is found to have libelled the Tory peer despite including *innocent face* as an apparent disclaimer within her 140 characters.

July 2013 Feminist campaigner Caroline Criado-Perez received rape and death threats over Twitter after successfully campaigning to have Jane Austen replace Charles Darwin on the £10 note, with Stella Creasey, Mary Beard and others drawing similar fire after coming out in support. Various men are charged on suspicion of harassment and other offences.

This rogue’s gallery shows that, whatever your own view may be over what is acceptable and the bounds of good taste, there are social media users behaving in a completely unconscionable manner, ostensibly oblivious to the fact that the long arm of the law reaches into cyberspace.

Perhaps an even better cautionary tale was the Manchester and London Riots of 2011, organised and incited by social media and marked by the sheer stupidity of some, who went as far as setting up Facebook groups and posting photographs of themselves holding the spoils of looting, in one case a huge bag of basmati rice. The social networks which Louise Mensch and David Cameron advocated shutting down led directly to the convictions of those responsible.

So, the consequences of a tweet or post sent in haste are all too clear – they can be defamatory, infringe copyright or other intellectual property rights, breach privacy, cost you your job (dependent on social media policies and terms of employment contracts), constitute harassment, malicious communication or improper use of an electronic communications network, incite riot or terrorism or leave you in contempt of Court. And yet, the Trolls continue to multiply.

Wary of stretching the already depleted resources of the Police and stifling free speech (even where offensive or unpopular), the DPP issued guidelines for the prosecution of criminal offences involving social media earlier this year, usefully confirming that only credible threats should lead to arrests and that prosecutions over content which is in bad taste, controversial, satirical, iconoclastic, unpopular or offensive will not usually be in the public interest, especially where the defendant has shown denying remorse and taken action to remove it.

The main consideration now is the effect on victims, and rightly so. If every objectionable message were prosecuted, we’d be in an Orwellian police state. So where do we go from here and how do we resolve the classic battle between freedom of speech and freedom from abuse?

It’s easy to blame the medium, but it’s also unfair to do so. A week or so ago, the media reported on two suicides of teenagers over abuse received over the Latvian social network Ask.FM. As much as the businesses behind social media platforms owe a clear moral duty to police them to at least some extent and protect their more vulnerable users, the global nature of the internet, sheer cost involved in pursuing a civil claim and unawareness of the Police in how to deal with an evolving medium all point to an effect that’s more difficult to manage than the cause.

And the cause is what makes a troll a troll. The obligation here has to be to educate the social media community as to the legal framework governing their environment and to understand what drives this behaviour. Not all trolling constitutes a criminal offence or gives rise to civil liability, but freedom of speech doesn’t equate to freedom to make death threats. How to respond to this kind of abuse is going to take some time to determine, but it may well be that recent scandals have put doing so firmly in the centre of our attention.