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Edited by David Mangan and Lorna E. Gillies

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Edited by David Mangan and Lorna E. Gillies

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Robin D. Barnes and Paul Wragg

This chapter addresses the phenomenon of social media use to hold sports personalities to account for perceived lapses of moral judgement. There have been many examples, in the US and UK, in which sporting figures have been outed and then pilloried through social media for privately held racist, sexist or homophobic outlooks. These mob-handed campaigns ridicule and ostracise, and coerce repentance and conformity. Although the problem straddles public and private law issues, this chapter explores the adequacy of private law to afford either meaningful protection or compensation to those affected. To keep matters manageable, this chapter will focus on UK law. It will be argued that although the threat to individuality raises genuine issues of privacy invasion, the law offers only thin protection to victims. Building upon the work of Wragg, it will be argued that the misuse of private information tort may be developed so that victims are protected from coercive uses of social media to regulate their moral behaviour. This chapter expands upon the meaning of coercion for these purposes. Keywords: social media; privacy; freedom of expression; human rights; harm; liberty

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Lorna Woods

Freedom of expression is an issue of increasing importance in the current networked environment. While claims relating to freedom of expression are often made referring broadly to the internet, in practice many cases relate to social media. Given the ubiquity of social media in its various forms as well as of such rights claims, it is timely to consider how these claims match against our existing freedom of expression framework (based on the ECHR). The shift to allowing user-generated content has meant not only an increase in the amount of content but also in the number (and variety) of speakers, as well as the variety of types of speech, including political and commercial speech, as well social and cultural interaction. Not all content is desirable; some may even constitute criminal activity. Restrictions result, imposed as a result of both governmental and private initiatives. This chapter assesses the application of freedom of expression principles in the context of social media and questions whether the right to private life might not provide a better frame for analysis. It is proposed that there are three aspects in respect of which freedom of expression might be seen to be problematic: the way in which individuals’ engagement with social media is viewed; the type of speech that is valued by an Article 10 analysis; and the persons on whom the rights burden falls. With regard to the first two issues, Article 10 does not adequately reflect the community aspects of some social media use, and the bar is set high in terms of the third issue, positive obligations. It is argued that framing the debate in terms of Article 8 would ameliorate some of these difficulties. Article 8 is, however, not a complete solution and an assessment of the appropriateness of Article 8 or Article 10 may depend on the facts in each case. Keywords: communication; positive obligations; (right to a) forum; private life

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David Mangan

The employment setting reveals much about the competing interests subsumed within the term ‘social media’. At the forefront of considerations is business reputation – a phrase which has been used as the basis for limiting workers’ speech. Focusing on UK law, to permit discipline for any form of social media remark (as is currently the case) would be inconsistent with the spirit of twenty-first-century developments in the common law understanding of defamation law that have expanded protection for speech. The argument here is that, following developments in defamation law, in the employment setting there must also be scope for remarks by workers on user-generated content platforms, while also protecting business reputation. Keywords: employment; discipline; defamation; business reputation; workplace speech

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Ian Walden

With the Leveson Inquiry, the Royal Charter and a forthcoming revision of the Communications Act 2003, the need to redesign the existing regulatory framework for the media in a converging environment is becoming increasingly apparent. This chapter considers the need for a regulatory scheme for the press and the difficulties of preserving freedom of expression while protecting and balancing other fundamental rights. Keywords: press regulation; convergence; Editors’ Code; PCC; IPSO

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Edina Harbinja

This chapter discusses issues surrounding the transmission on death of content created on Facebook. Social network accounts and content are categorised in this chapter as a type of digital asset. The first issue that the chapter briefly looks at is the nature of this content, ie whether it could be considered property or copyrightable content or if it is mere information and personal data. The focus is on the unpublished content, as the transmission of published works protected by copyright is straightforward and not digital asset specific. Second, the chapter analyses the provisions of terms of service of Facebook in relation to its treatment of ownership and transmission of content on death. The chapter finds contradictions between relevant provisions within the same provider’s terms of service. These terms, especially in the case of Facebook, are complex and scattered, and they do not offer an informed and meaningful choice for their users. There have been some improvements recently, however, with the introduction of Facebook Legacy Contact. The chapter will critically evaluate this technological solution and offer some suggestions for its improvement. Third, the chapter adopts a novel approach, using post-mortem privacy as an argument against the default transmission of social network content on death without the deceased’s content. This phenomenon, along with the non-proprietary nature of the content, should preclude the default transmission of social network accounts according to the law of intestacy. Finally, recognising the issues of access to this content, post-mortem privacy, and conflicts of the deceased’s interests with the interests of his heirs and friends, the chapter suggests that combining technology and law as regulatory modalities in this case would produce the most nuanced results from the users’ perspective. Keywords: digital assets; post-mortem privacy; copyright in social networks; social network contracts; death online; Facebook Legacy Contact

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Andrew D. Murray

Since its inception as a stand-alone topic of scholarship in the 1990s, cyberlaw has been a study in regulatory theory. We have discussed systems of regulation and tools of regulatory enforcement. We have divided groups into techno-determinists and libertarians/communitarians and we have discussed effectiveness and legitimacy. The missing element of much cyberlaw study has been the law element. We have focused too extensively on the cyber and too little on the law. This chapter seeks to rebalance and refocus cyberlaw on the key element, the jurisprudential structure of cyberlaw, in particular to examine the question of the rule of law (or its absence) in cyberspace. In so doing it seeks to form the foundations of a cyberlaw jurisprudence by asking some difficult normative questions: Can a rule of law exist online? If so who is the legitimate lawmaker and what values are enshrined by cyberlaw? Keywords: rule of law; cyberlaw; jurisprudence; jurisdiction

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Edited by David Mangan and Lorna E. Gillies

Social media enables instant access to individual self-expression and the sharing of information. Social media issues are boundless, permeating distinct legal disciplines. The law has struggled to adapt and for good reason: how does the law regulate this medium over the public/private law divide? This book engages with the legal implications of social media from public and private law perspectives and outlines how the law, in various legal sub-disciplines and with varying success, has endeavoured to adapt existing tools to social media.
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David Mangan and Lorna E. Gillies