The behaviour of those using social media sites and online P2P file-sharing sites often gives the impression that they assume themselves to be 'untouchable' by law or regulation. So, sometimes, does the attitude evinced by the organisations that own or operate those sites. But recent developments in English law suggest, with increasing frequency, that those assumptions are misconceived. We shall selectively review some of these legal developments below.
SOCIAL MEDIA
Crime...and punishment!
Open abuse
In the past few months an impressive arsenal of statutes has
been deployed in order to impose criminal sanctions on those who
use social media for abusive purposes. For example, in February the
Malicious Communications Act 1988 was used to give Peter
Copeland a four-month suspended jail sentence for having tweeted
racist comments about Newcastle United fans. In May the Crime
and Disorder Act 1998 was used to jail Liam Stacey for two
months for the racist remarks that he made on Twitter about Fabrice
Muamba, a professional footballer. The Serious Crime Act
2007 has recently been used to jail (inter alios)
Jordan Blackshaw for 4 years in August for having encouraged
rioting by creating a Facebook event entitled 'Smash d[o]wn in
Northwich town'.
And section 127 of the Communication Act 2003 has received
publicity in various recent cases. One of them related to Joshua
Cryer, a law student who was sentenced in March to a two-year
community order for having sent grossly offensive messages to Stan
Collymore, a former footballer. Another related to Paul Chambers
who, frustrated at the closure of Doncaster Robin Hood Airport, had
tweeted in May 2010 "You've got a week and a bit to
get your OBSCENITY together otherwise I'm blowing the airport
sky high!". He was convicted of the criminal offence of
"sending, by means of a public electronic communications
network, a message of a menacing character", and his appeal
against the conviction was dismissed in November 2011 by the Crown
Court. However, in July of this year, to widespread relief (not
least on the part of the various celebrities who had funded his
defence), Mr Chambers' conviction was overturned by the High
Court1, who held that his tweet was not in fact
menacing. The court took into account the fact that the security
services had not responded to the message with any urgency, and
that none of those who had followed Mr Chambers' tweets had
reported his message as a threat.
Anonymous abuse
All too often those who post abuse on social media sites do so
anonymously, and this obviously creates serious legal problems for
their victims. One such victim, Payam Tamiz, was the subject last
year of a series of libels posted anonymously on the blog London
Muslim, which was operated by Google Inc from the blogging platform
Blogger.com. Mr Tamiz succeeded in persuading Google Inc to remove
the libels following his complaint, but the legal proceedings that
he instituted in the English courts against Google Inc and Google
UK Limited for defamation were less successful. The proceedings
against the latter were held to be misconceived, on the grounds
that Google UK Limited was responsible only for sales and marketing
in the UK; and his action against the former failed before the High
Court in March on the grounds that, although a 'real and
substantial' tort had been committed within the jurisdiction,
the role of Google Inc had been purely passive, and it was not
therefore a publisher at common law2.
However, a strikingly different result was obtained more recently
in the landmark case of Brookes v Facebook
Inc3. Having received vicious and anonymous abuse
on Facebook as a result of having posted a comment in support of an
X-Factor contestant, Nicola Brookes failed to interest her local
police force in the matter, and therefore instituted High Court
proceedings against Facebook seeking a Norwich Pharmacal
4 order requiring disclosure of the abusers'
identities. Her application was successful, making this the first
case in which a High Court disclosure order has been granted in the
case of internet trolling. As a result, the true identity of one of
the abusers – the pseudonymous 'Cuthbert
Bollingsworth-Smythe' – was revealed, and an arrest has
subsequently been made.
In the meantime it seems as if the war against anonymous social
media users may be assisted by forthcoming legislation. Section 5
of the Defamation Bill (which will apply where an action for
defamation is brought against a website operator in respect of a
statement posted on that website) grants a statutory defence to the
operator if it shows 'that it was not the operator who posted
the statement on the website'. But the defence is conditional,
for it will be defeated if the claimant can show that the website
operator fails to respond to a 'notice of complaint' served
on it by the claimant seeking the identity of the maker of the
statement. There are hopes that this section, if and when enacted,
will provide to future victims of anonymous social media abuse a
far easier and cheaper method of identifying the perpetrators than
having to engage in chancy and expensive legal proceedings.
A much-regulated society
If the law has a very long arm, so does regulation, and we set out below examples of two fields of activity where, as shown by recent developments, compliance with regulations on social media behaviour is highly advisable.
Advertising
Advertisers naturally find social media sites hugely attractive,
but in promoting their wares on those sites they need to comply
with the CAP Code, including the basic rule that 'marketing
communications must be obviously identifiable as such'. Two
recent Advertising Standards Authority (ASA)
adjudications, both involving 'celebrity tweeting
campaigns', demonstrate the difficulties that can be
encountered.
One adjudication5, in March, related to Mars Chocolate
UK Limited, which had advertised its SNICKERS chocolate bars by
reference to a series of celebrity tweets by Rio Ferdinand and
Katie Price, only the final ones of which 'revealed' the
celebrities with the product itself. In its decision the ASA
declined to uphold complaints about the campaign which, in its
opinion, made it sufficiently clear to consumers that the series of
tweets were indeed marketing communications.
But, more recently, another ASA adjudication6 on a
celebrity tweeting campaign – this time on the part of Nike
(UK) Limited - produced a different result. In this case the ASA
ruled that tweets sent from the official accounts of Wayne Rooney
and Jack Wilshire did breach the CAP Code since, despite carrying
the Nike URL in their texts and the name of the campaign in the
hash tag, those references were not prominent and could be
missed.
The legal profession
Nor is the legal profession immune from regulations on social
media. For example, in December 2011 the Law Society issued a
Practice Note giving detailed guidance on solicitors'
use of social media. The Note7 warned solicitors about
the pitfalls awaiting them in using the social media: for example,
tweeting that s/he is in a certain location at a certain time might
reveal that the solicitor is working on a deal for a specific
client, and thus breach client confidentiality.
Even judges are affected by social media diktats! Thus, in August a
Guidance Note issued on behalf of the Senior Presiding Judge and
the Senior President of Tribunals prohibited judges who chose to
blog from identifying themselves as members of the judiciary.
ONLINE PEER-TO-PEER FILE-SHARING
In contrast to most previous years, the year 2012 has so far seen a series of striking successes for IP rights-owners engaged in the battle against online P2P file-sharers under English law. We review some of them below.
Legislation
As reported in various Wedlake Bell seminars, the Digital Economy Act 2010 enacted, for the first time, statutory obligations on internet service providers (ISPs) to take specified action in respect of their allegedly infringing subscribers. However, these obligations have not yet been implemented, not least because of a concerted legal challenge to those obligations by two of the country's largest ISPs in the form of an application for judicial review. With the sole exception of liability for administrative costs in implementing those obligations, the application for that judicial review was rejected by the High Court last year, and the appellants' appeal against that rejection was dismissed8 in March. The Digital Economy Act 2010 is therefore now back on the rails, and OFCOM (the quango in charge of implementing it) has recently reported that it is well on track, with the first notifications to allegedly infringing subscribers expected to be sent out in Spring 2014.
Judicial decisions
Recent months have seen a striking series of decisions by the
English courts that have given great encouragement to copyright
owners who are the victims of illegal online file-sharing. In
February the High Court9 ruled that both the operators
and the users of The Pirate Bay had infringed the copyright of
record companies. In the following month, in a case involving the
(pornographic) film industry, the High Court granted10 a
Norwich Pharmacal order against O² requiring it to
disclose the details of its P2P file-sharing customers. In May
English legal history was made when injunctions were
granted11 by the High Court against five UK ISPs
requiring them to block access to The Pirate Bay, the for the first
time that section 97A of the Copyright, Designs and Patents Act
1988 had been deployed.
And in June, as a result of a private prosecution by The Federation
Against Copyright Theft (FACT) under the Criminal
Justice Act 1987, the operator of surfthechannel.com (one of the
world's most-visited pirate websites) was convicted by the
Newcastle Crown Court12 and sentenced to four years'
imprisonment. As well as putting behind bars one of the
country's most infamous copyright infringers, this conviction
is believed to be a world record, in that it is the longest
sentence yet awarded either in the UK or elsewhere to a copyright
infringer.
Results
There are already indications that the above (and other) developments are having an effect. In August UKNova – an allegedly infringing file-sharing site that had operated since 2003 – closed down after the receipt of a complaint from FACT. And in September Google announced an important change to its search algorithm, that will effectively 'downgrade' websites that persistently infringe copyright law by causing them to be displayed lower in the list of 'natural' search results.
CONCLUSION
The above developments tend to suggest that, from the point of
English law at least, those who use or operate social media sites
and file-sharing sites may well be less 'untouchable' than
they thought. In the meantime, and as a reminder of how the long
arm of the law can stretch into cyberspace, approval was given
earlier this year by the High Court for the service of the claim
form on a defendant by Facebook, believed to be the first time (but
not, assuredly, the last) that a decision has been made at High
Court level regarding service of proceedings via Facebook.
The frequent comment that "the law lags behind
technology" is only partly correct. The law is certainly as
not up-to-date as the latest social media or file-sharing site, but
it can and does apply to the users of those sites, as demonstrated
above; and those users who ignore the law do so increasingly at
their peril.
Footnotes
1 Chambers v Director of Public Prosecutions [2012] EWHC 2157(QB)
2. Tamiz v Google Inc et al [2012] EWHC 449 (QB).
3. June 2012, unreported.
4. Norwich Pharmacal Co et al v Customs & Excise Commissioners [1974] AC 133.
5. 7 March 2012, reference A12-185389.
6. 20 June 2012, reference A12-183247.
7. Law Society, Practice Note, Social Media, 20 December 2011.
8. R (British Telecommunications Plc) v BPI Limited et al [2012] EWCA Civ 232.
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