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Alex Mills

Social media networks have democratised the power of mass communication. One less laudable consequence of this development is, however, that individuals are at a much greater risk of committing defamation than existed under traditional media, which would generally exercise editorial control. The legal problems associated with defamation on social media are made more complex by the fact that through the internet in general, and social media in particular, communications will readily cross borders. Where a communication crosses borders, the question of the applicable law arises – whose law should govern whether the communication gives rise to an actionable claim for defamation? This is a problem which is addressed by rules of private international law, in particular through choice of law rules. This chapter examines the rules which apply in the English courts to determine which national law governs cross-border claims in defamation, considering whether a special rule should apply for online defamation, and whether the problems raised by social media require further specialised regulation. In so doing, it also analyses why the applicable rules, which were developed in the nineteenth century, have proven so resistant to modernisation in the face of the challenges of the twenty-first century. Keywords: choice of law; jurisdiction; defamation; libel; social media; internet

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Daithí Mac Síthigh

Contempt of court is a doctrine that has long faced challenges relating to changes in the media. The interest of the press in court proceedings, and the evolution of an often undeferential media, makes it a significant issue of which any sensible editor should be aware. Nonetheless, contempt is facing a number of quite substantial challenges in relation to social media. Indeed, even where contempt has been placed on a statutory basis, the specific language used may lead to doubts as to the application of the law to particular situations (particularly where it contemplates or refers to conventional structures of publishing and broadcasting). In this chapter, I outline some of the challenges, drawing both on case law and on the recent work of the Law Commission (England and Wales), the Australian Law Reform Commission, and the New Zealand Law Commission. Keywords: contempt of court; criminal law; jury trial; freedom of expression; Law Commission

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Jacob Rowbottom

A number of high-profile cases have demonstrated the way that expression on the social media can be subject to criminal prosecution. Laws designed to regulate public order, nuisance telephone calls and harassment have been applied to internet speech. While there is no case for suggesting that internet speech should have an immunity, it is notable that remarks made on social networks in the heat of the moment (albeit grossly offensive) have been subject to criminal prosecution. Had such remarks been made in another social setting, such as a conversation in a cafe, it is unlikely that they would have come to the attention of prosecutors. The recordable and searchable nature of the digital media makes it more likely that law enforcement officers will notice informal conversations and the recorded data provides evidence for prosecution. In addition, the criminal laws in question are often broadly worded and could potentially apply to a wide range of expression. The practical result of these trends is an extension of the criminal law into people’s everyday conversations, which raises issues about the protection for freedom of expression. The first issue is whether the use of the criminal law is proportionate in such cases? While criminal prosecution will be justified in the most serious instances of abuse and harassment, alternatives to the criminal law might be considered as an option to deal with other cases. Another strategy may be to increase the threshold of harm required before a prosecution can be brought. To some extent, the DPP’s guidelines on social media cases have addressed these issues in practice. That does not, however, resolve the free speech concerns in relation to the substance of the law. A second issue for freedom of expression is that most of the offences being applied to the social media do not have an explicit public interest defence. As a result, the law could be invoked against those expressing political views. While the free speech issues could be incorporated into the interpretation of the law, an analogy with public order cases demonstrates why such an approach is likely to be deficient. When approaching such issues the courts have often assessed freedom of expression from the perspective of the audience, and placed little weight on the participation rights of the speaker. The courts have in some cases treated those types of speech that engage the criminal law as unnecessary abuse or noise, rather than an exercise of expression rights. While the matter has not yet been fully tested in the courts, there is a danger of a similar approach being taken in relation to internet speech. It will be argued that such an approach would be too dismissive of the speech rights at stake. Keywords: freedom of expression; malicious communications; offensive communications; prosecution policy; public order law

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Edited by David Mangan and Lorna E. Gillies

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Lorna E. Gillies

This chapter elects as its focus the need to balance human rights in English residual jurisdiction rules for cross-border torts via social media. Private international law applies a pluralist, pragmatic approach in supporting both the rights and interests of EU and non EU domiciled litigants in establishing and defending claims and the interests of states in exerting jurisdictional competence or in striking out such claims. In particular, the role of the national courts in determining and interpreting residual jurisdiction over such internet torts has implications for the balance between particular human rights – those concerned with freedom of expression, the protection of privacy and the right to a fair hearing and fair access to a court. This chapter considers how the specific rights of freedom of expression and the right to a fair trial should be integrated into English residual jurisdiction rules. This chapter concludes that an approach which balances particular human rights into judicial techniques of residual jurisdiction has a range of benefits in private law’s contribution to internet regulation.

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David Mangan and Lorna E. Gillies

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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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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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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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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