Wednesday, 26 January 2011

Social Media and the Law

Everyone's heard a story about an employee who got sacked because of an ill-judged Facebook status. If you haven't, check this out:

Image from

Although 'Facebook firing' is another branch of the personal vs. work profile debate (what is really private? when are you the face of the brand?) it does raise another question - the stance of the law.

Legal precedents are being set left right and centre in the digital sphere, but is there a consistency, or a guiding principle? Privacy law, intellectual property law, libel law all these can easily be applied to a virtual space where people voice their opinions and engage with others. Or can they?

Where are people saying these things, for example? If I tweet something, is that tweet subject to the law of my country or the law of the country where Twitter is hosted?

And what about advertising laws, and the laws that govern fair trading? In the U.K the Advertising Standards Agency are clamping down on social media marketing, but this is considerably behind the times. We needed regulation on how companies promote themselves on social media years ago, as companies saw these mediums as a way to circumvent existing offline rules, creating misleading campaigns and unfair competitions.

Can the law keep up with social media, or will it always be one step behind? I have a feeling this won't be the last blog I do on this topic, and i'd love to hear your thoughts!


  1. The law is slow moving and increasingly lags the speed of change which technology and social media platforms enjoy. Cases may take up to 18-36 months to pass through the Courts before turning into (by then easily distinguishable) precedents. A private member petition will not surmount the various rounds of debate and revisals which befall a bill much quicker before starting life as an enforceable statute. This is obviously not optimum. Add to the timescales the problem that many judges may not have the requisite knowledge or experience of social media to decide certain disputes and now the problem is that much greater. But the race is not to the swiftest nor the battle to the strong.

    It should be noted though that the law is not in the same race as technology. In a way, social media is being regulated in context rather than character. What I mean by this is that social media is increasingly the setting for a number of disputes across a variety of legal disciplines rather than the subject matter. Acting as a facility in the service of litigation documents, an asset in a corporate divorce, or a forum for employee relations, one can examine social media where the rubber meets the road. In this way the law as it applies to matters in a social media context will benefit from a wider and richer number of decisions.

  2. Good points, thank you. It hadn't actually occurred to me that that those who have the final say - the judges- are those who may have the least exposure to and understanding of social media. I agree that when this is added to the problem of speed it becomes very difficult to legislate on.

    It is heartening to think however, that if as you say, social media is becoming a part of the legal world in other guises that the decision makers may well become more acquainted with it. Also it's a valid point that social media is rarely examined out of a different, entirely separate legal context as evidence in a case, or a tool for legal practitioners, which must be a good thing!

  3. Text based social media suffers the same problem we've had for years in email in particular: It's not always possible to determine whether the author is joking around or being serious from the words alone. Especially from micro messages such as sms and tweets. This has lead to, in my opinion, the legal process getting it horribly wrong in the Paul Chambers case for example, where the judge is reported as saying:

    "The words in the message speak for themselves and they were sent at a time when the security threat to this country was substantial,"

    The second part may well be true. Arguably perpetually true, since as I write this "The current threat level from international terrorism is Severe. This means that a terrorist attack is highly likely." as on The Home Office site ( ).

    The first part of the quote I tend to disagree with and illuminates why I think this is the law gone wrong. I don't know the full details argued in the case but it seems to me that his tweet was taken literally and in isolation, with no attempt to understand or accept the context. The legal process based upon the least likely literal sense rather than what would be, in my opinion, a far more likely 'messing around' sense.