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 7: What is a joke? Mapping the path of a speech complaint on social networks

Emily B. Laidlaw

Abstract

When an individual goes online and makes a comment that causes offence it can be framed in a variety of ways. It can be framed as hate speech, defamatory speech, an invasion of privacy, terrorism-supporting speech, or bullying, obscene or offensive speech. The common defence of such posts is that it was just a silly joke. The question for speech regulation is how to treat such purported jokes. Are these jokes simply pushing boundaries; distasteful, but the price we pay for our freedom of expression? The banter and jokes that take place on social media are often spontaneous and imperfectly executed. The problem is that some of these jokes can cause serious harm, particularly to traditionally marginalised groups which tend to be the targets. The response of Western countries is varied, with the United Kingdom, for example, struggling with over-criminalisation of such comments, while that is not the case in Canada or the United States of America. Most complaints about content fall to be privately regulated through the hosts. Through the lens of what is a joke, this chapter maps the path of a complaint about speech on social networks, focusing on the ways that the law, industry measures and voluntary policies by the hosts interwork and intersect. This mapping will then be used to highlight the difficulty in drawing a line between offensive speech requiring regulation and jokes. Keywords: free speech; offence; industry regulation; criminal speech; intermediaries; terms of service

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