by Michael Aspinall, Barrister specialising in Criminal Law

How easy is it to stay within the law on social media? You can’t read a newspaper or turn on the television today without being confronted by a story of somebody who has become embroiled in legal proceedings because they have misused the social media; someone who has posted a message inciting others to commit crime or providing their less than expert opinion on somebody – often someone they have never met – expressed in the most vile and insulting language possible.

The increased popularity and use of social media is reflected in the growth of the numbers of such stories.  The English language has even developed a new term for the latter type of behaviour: ‘trolling’. (usu. as noun trolling) informal send (an email or newsgroup posting) with the intention of provoking an angry response  Concise Oxford English Dictionary © 2008 Oxford University Press.

Some deliberately use the new media to cause outrage or to harass. Many others have ended up in court because they acted without thinking of the consequences of their foolish acts.

Many say that the law – as usual – has failed to keep pace with the development and the uses of technology and the new ways people communicate with each other; it doesn’t understand the new society of its users who are rapidly creating new norms of behaviour.  In short, the law does not appreciate how people interact with each other these days.

This misses the point: the purpose of the law is to protect the vulnerable.  It does this by regulating people’s behaviour.  The law is concerned with behaviour irrespective of the medium through which it is performed. 

We are responsible for our behaviour

If I shout abuse at someone in the street, I would be rightly charged with a criminal offence against public order.  If I write an article unjustifiably calling someone a liar or a pervert, he or she could successfully sue me under the civil law for defamation. 

Should the method of the communication of my words affect the sanction it should attract?  If I shout abuse in the street, my words are out of my mouth and then disappear into the ether.  Of course they may immediately offend or distress the one or two people in the street who hear them but they do not persist.  On the web, they can last for an eternity and they can be read by the entire world.

We have many existing laws designed to regulate behaviour.  They can and are used to regulate the behaviour of those who act online.  That is reflected in the number of stories of court cases we see.  If we look at the law in that way, we realise it is unacceptable behaviour that is at fault.  Most definitely, the medium is not the message.

Most of us understand the limits of our behaviour and we don’t go round acting in such a manner, whatever the temptation.  We would never think of shouting abuse in the street or phone someone just to speak some bilious phrases to someone who has annoyed us. However, the very ease of broadcasting our current feelings via a computer makes us all open to scrutiny in a court of law.

The difficulty with using social media is that people’s instantaneous words are potentially broadcast to all.  Secondly, they are captured and stored. They do not fly off into the air.  The can be retrieved and analysed in ways they were never intended to be.  We all have looked at our old school essay books and shuddered when we look at what we wrote in our spotty angst-ridden teenage years.  Imagine the world at large being able to look at what you wrote when drunk or angry or feeling down.

Sitting alone after dark with just a computer to talk through robs us of those social cues we receive when talking to other human beings.  We know when we have upset someone by his or her reactions, their tone of voice or the look on their face.  If we have half decent social skills, we modify our behaviour so we don’t continue to hurt them.

Of course, social media can be a force for good.  The oppressed and weak send messages to the world detailing the actions of the tyrants.  It is the very universality and enduring nature of what they are able to write that is so powerful.  But the flipside of this power given to individuals by social media is that those who defame, incite crime or abuse others also have their words broadcast and set in stone and can be called to account for what they have done.

I was always taught that if I wrote a letter in anger, don’t post it.  Sleep on it and look at it again in the cold light of dawn.  If you feel the same, walk to the post box and send it. If you don’t, revise it or don’t send it. That is because paper is real. We can hold and touch it.  If we can, so can the recipient and he or she will have a permanent record of our felling of anger at the time of writing.

With computers, the sending of the expression of anger can be done by the press of a button. Once they are sent, they are recorded and we all know you can’t unring a bell.

Existing laws

So what are the laws that can be used to police the new media?  They include the Malicious Communications Act was passed as long ago as 1988.  It makes it an offence to send to another person a letter, article or electronic communication, which is indecent or grossly offensive, threatening or contains falsehoods, which the sender knows or believes to be false.

 The Communications Act of 2003 catches those who use a public electronic communications network a message or other matter which is grossly offensive, or of an indecent, obscene or menacing character.  As soon as the offending message is sent, a crime has been committed.  Yes, using Twitter is using a ‘public electronic communications network’.

 Inviting a few friends round to participate in a riot can put you in breach of the Serious Crime Act of 2007, which makes it an offence to encourage or assist someone to commit an offence.

 Aside from the criminal law, if you say something that is false and discredits someone else, he or she could sue you for defamation. It could be a very, very expensive few minutes at the keyboard.

Tips for staying within the law on social media

So here are my top tips to stay out of trouble and out of court:

• The computer is not a shield –it is a sword.  It cannot not hide you:  You can and will be found.

• Never tweet in anger –always reflect on what you are writing;

• Never write anything that you cannot justify;

• What is extremely funny when you are drunk is often very far from that in the cold light of day;

• Always think twice before you press the send button!