The Legal Challenges of Social Media
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The Legal Challenges of Social Media

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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Chapter 6: Social media: it is not just about Article 10

Lorna Woods

Abstract

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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