Publishers and the law must work together
In the news there are often cases of so-called 'revenge porn', or reports of violent incidents that have happened through an ill-fated meeting on a social media site. Solicitors deal with life when it is at its most troubling and, as we become more accustomed to living in a digital age where technology advances at a ?rapid pace, challenges arise, ?so we must ensure we are equipped with the right tools ?to address them.
To some extent, the law is playing catch up on developing clear legislation that adequately reacts to and addresses the rapidly changing social and digital sphere. Almost two years ago, the Crown Office set out guidelines advising social media users that anything they post online that could be considered a crime on the street would be illegal.
The aim, the Crown Office said, was not to deny freedom of speech but to target those committing hate crimes, such as racism, sectarianism, homophobia, or sending violent pictures and messages. It’s vital that these boundaries are clearly marked to protect and act effectively for clients through a legal system which is robust in its approach to dealing with crimes committed online.
It is also vital the profession keeps abreast of developments with social media, and one of the areas in which social media challenges the law is defamation cases. A judge commented in the case of Smith v ADVFN Plc and others [2008] EWHC 1797 (QB) that ‘people chatting in a bar’ was the equivalent to a chatroom discussion and, as such, more in line with slander than libel law.
The belief is people are less likely to scroll through reams of conversation to look at a defamatory statement again, rather than being able to easily find it on a news website or blog. Earlier this year, the European Court of Human Rights ruled that Estonian news site Delfi may be liable for anonymous and allegedly defamatory comments from readers.
However, the European Union’s E-Commerce Directive provides a guarantee of ‘liability protection for intermediaries that implement notice-and-takedown mechanisms on third-party comments’. Similarly, a recent case against Google ruled the search engine was liable for defamatory comments held on websites.
This is a remarkable development, and shows that the law is challenging social media and the web to protect the rights of businesses and individuals without impinging on freedom of speech.
The time for removing defamatory posts is 48 hours from receipt of notice of the complaint; however, the damage to reputation has been done. The 48-hour period excludes weekends and bank holidays. It is vital the legal profession ascertains how much damage has been done, despite the fast-paced nature of social media and the web.
Search engines and online publishers should devise a strategy in cooperation with the legal profession to ensure that laws are upheld. To act at our best, we must keep up to date with changes and collaborate. SJ
Danielle Hughes is a solicitor at Kirwan @KirwansLaw www.kirwanssolicitors.co.uk
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