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The Limits of Freedom of Expression on Facebook and Social Networking Sites: A UK Perspective

Human Rights Law Review 13:1 The Author [2013]. Published by Oxford University Press.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
The Limits of Freedom of
Expression on Facebook and
Social Networking Sites:
A UK Perspective
Dominic McGoldrick*
Keywords: the Internet ^ Facebook ^ social networking sites ^ freedom
of expression ^ privacy ^ United Kingdom

  1. Introduction
    Facebook1 and other internet-based2 social networking sites (SNSs)3 have revolutionised modern communications.4 Each month more than a billion people
    actively use Facebook.
    5 Facebook activity is global in scope but disproportionately
    *Professor of International Human Rights Law, School of Law, Co-Director, Human Rights Law
    Centre, University of Nottingham (dominic.mcgoldrick@nottingham.ac.uk).
    1 For a description of how Facebook operates, see Smith v Trafford Housing Council [2012] EWHC
    3221 (Ch) at paras 26^29.
    2 The total number of internet users worldwide is now estimated at over two billion. See La
    Rue, Report of the Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/17/27, 16 May 2011, at para 2.
    The Report explores key trends and challenges to the right of all individuals to seek, receive
    and impart information and ideas of all kinds through the internet.
    3 See Noor Al-Deen and Hendricks (eds), Social Media: Usage and Impact (Lanham, MD:
    Lexington Book, 2012); and Boyd and Ellison, ‘Social Network Sites: Definition, History and
    Scholarship’ (2008) 13 Journal of Computer-Mediated Communications 210.
    4 Human Rights Committee, General Comment 34: Freedoms of opinion and expression, CCPR/
    C/GC/34 (GC 34) 12 September 2011, at para 15 states: ‘[I]nternet and mobile based electronic
    information dissemination systems, have substantially changed communication practices
    around the world. There is now a global network for exchanging ideas and opinions that
    does not necessarily rely on the traditional mass media intermediaries.’ See also O’Flaherty,
    ‘Freedom of Expression: Article 19 of the ICCPR and the Human Rights Committee’s General
    Comment No 34’ (2012) 12 Human Rights Law Review 627.
    5 Lee,‘Facebook Surpasses One Billion Users as It Tempts New Markets’, BBC News, 5 October 2012,
    available at: http://www.bbc.co.uk/news/technology-19816709 [last accessed 29 January 2013].
    Six hundred million users are accessing the site via a mobile device, see ibid. Facebook has overtaken Myspace, with twenty-five million registered users, as the leading SNS.
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    focused on the Americas, Europe and Australasia.6 Some major human rights institutions and organisations use SNSs.7 In some countries local networks
    remain dominant. In Russia, theVKontakte network has more than one hundred
    million members, compared with Facebook’s seven million Russian members. In
    China, RenRen has more than thirty million users. Twitter, created in 2006, is
    an online SNS and microblogging service that enables its users to send and
    read text-based messages of up to one hundred and forty characters, known as
    ‘tweets’. As of 2012 it reportedly had over five hundred million active users generating over three hundred and forty million tweets daily and handling over 1.6
    billion search queries per day.8 Twitter users include presidents, prime ministers
    and the Pope. In China, the Twitter-like service SinaWeibo has more than three
    hundred million users.
    These developments obviously post-date the principal international human
    rights treaties that contain norms relating to freedom of expression. However,
    these provisions are often widely framed. Article 10(1) of the European
    Convention on Human Rights (ECHR), for example, provides: ‘Everyone has
    the right to freedom of expression. This right shall include freedom to hold
    opinions and to receive and impart information and ideas without interference
    by public authority and regardless of frontiers’. It encompasses a diverse variety of forms and means in which information and ideas are manifested, transmitted and received. The European Court of Human Rights (ECtHR) has dealt
    with some aspects of internet communications,9 but not issues arising from
    SNSs. For contracting parties to the ECHR, even if the ECtHR might deem
    some SNS speech of little value,10 SNS regulation will have to comply with the
    rigorous demands of Article 10(2) of the ECHR.11 The ECtHR’s longstanding jurisprudence is that the right to freedom of expression includes the right to say
    6 The percentage of the population using Facebook are North America (44.97%), South
    Americas (33.92%), Europe, the largest market with 243 million users (29.96%), Australia
    and Oceania (42.14%), Asia (6.68%) and Africa (5.15%). In terms of individual countries the
    biggest users are Brazil, India, Indonesia, Mexico, the United States and the UK. On the ‘digital
    divide’, see La Rue, supra n 2 at para 61.
    7 For example, UN Human Rights can be followed on Facebook: see: https://www.facebook.com/
    unitednationshumanrights; Twitter: http://twitter.com/UNrightswire; Googleþ gplus.to/
    unitednationshumanrights; YouTube: http://www.youtube.com/UNOHCHR; and Storify:
    http://storify.com/UNrightswire. Human Rights Watch’s Facebook page, available at: http://
    en-gb.facebook.com/HumanRightsWatch [last accessed 29 January 2013].
    8 Dugan, ‘Twitter to Surpass 500 Million Registered Users on Wednesday’, 21 February 2012,
    available at: http://www.mediabistro.com/alltwitter/500-million-registered-users_b18842 [last
    accessed 29 January 2013].
    9 See Vajic and Voyatis, ‘The Internet and Freedom of Expression: A ‘‘Brave New World’’ and the
    ECtHR’s Evolving Case Law’, in Casadevall et al. (eds), Freedom of Expression (Oisterwijk: Wolf,
    2012) 391; and Ahmet Yildirim v Turkey Application No 3111/10, 18 December 2012 (restriction
    of internet access without a strict legal framework regulating the scope of the ban and affording the guarantee of judicial review to prevent possible abuses violated Article 10 ECHR).
    10 Von Hannover v Germany 40 EHRR 1; Standard Verlags GmbH v Austria (No2) Application No
    21277/05, Merits, 4 June 2009, at paras 42 to 56. Cf Campbell v MGN [2004] UKHL 22 at 149.
    11 See Rowbottom, ‘To Rant, Vent and Converse: Protecting Low Level Digital Speech’ (2012) 71
    Cambridge Law Journal 355.
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    things or express opinions ‘that offend, shock or disturb the state or any sector
    of the population’.
    12 The United Nations Special Rapporteur on Freedom of
    Expression has asserted the same approach.13 Article 19(2) of the International
    Covenant on Civil and Political Rights (1966) (ICCPR), to which the United
    Kingdom (UK) is a party, provides:
    Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all
    kinds, regardless of frontiers, either orally, in writing or in print, in the
    form of art, or through any other media of his choice.
    In its practice and jurisprudence the Human Rights Committee (HRC) has had
    no conceptual difficulty in applying that provision to freedom of expression
    on the internet.14 Means of expression are considered to include ‘all forms of
    electronic and internet-based modes of expression’.15 The HRC recommended
    that States parties should ensure that legislative and administrative frameworks for the regulation of the mass media are consistent with the provisions
    of Article 19(3), which provides:
    The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject
    to certain restrictions, but these shall only be such as are provided by
    law and are necessary: (a) For respect of the rights or reputations of
    others; (b) For the protection of national security or of public order
    (ordre public), or of public health or morals.
    Regulatory systems should take into account the differences between the print
    and broadcast sectors and the internet, while also noting the manner in
    which the various media converge.16 Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information
    dissemination system, including systems to support such communication,
    such as internet service providers or search engines, are only permissible to
    the extent that they are compatible with Article 19(3).17 The HRC has considered that journalism is a function shared by a wide range of actors, including bloggers and others who engage in forms of self-publication on the
    internet or elsewhere.18
    12 Handyside v United Kingdom A 24 (1976); 1 EHRR 737, at para 49.
    13 La Rue, supra n 2 at para 37
    14 See also ibid. at 6^9 on ‘General principles on the right to freedom of opinion and expression
    and the Internet’; and Human Rights Council, Resolution 20/8, A/HRC/RES/20/8, 16 July
    2012, at para 1.
    15 GC 34, supra n 4 at para 12.
    16 Ibid. at para 34.
    17 Ibid. at para 43.
    18 Ibid at para 44.
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    The Facebook network is mainly reliant on self-policing by its users. Twitter
    has a free speech policy that means it does not interfere in disputes or restrict
    what it describes as ‘controversial content’. Moreover, the very nature of
    internet-based communications inevitably poses challenges for legal systems
    in terms of both applicable law and connection with territorially bounded jurisdictions.19 There have been an extensive number of legal challenges to internet
    service providers such as ‘Google’ and web hosts in attempts to hold them liable
    for unlawful third-party content that passes through an internet service provider’s (ISP) network20 and to address privacy21 and data protection concerns22
    relating to the operation of SNSs.23 There are also increasing regulatory controls
    relating to child and consumer protection.24 In the UK and elsewhere the
    19 See Davison v Habeeb [2011] EWHC 3031 (QB) (an order permitting service of a libel claim on
    Google Inc out of the jurisdiction was set aside where the claimant failed to disclose a real
    and substantial tort within the jurisdiction). Facebook and Twitter are US-based companies.
    See Chrisafis, ‘Twitter at Odds with French Over High-trending ‘Hate’ Tweets’, The Guardian,
    10 January 2013. In 2012 Twitter complied with a request from the German authorities to
    block the account of a banned neo-Nazi group. All users of Facebook outside of the United
    States and Canada have a contract with Facebook’s Irish subsidiary ‘Facebook Ireland Limited’.
    20 See Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 WLR 1243 (ISPs have a qualified immunity
    provided they do not perform an editorial function); Godfrey v Demon Internet Service [2001]
    QB 201 (it is possible for an ISP to be liable for the content of sites which it hosts); and Tamiz
    v Google Inc [2012] EWHC 449 (QB) (an order permitting service of a libel claim out of the jurisdiction was set aside where the defendant, as the provider of an internet platform for blogging, could not be regarded as a publisher).
    21 There is some evidence that SNS users do value privacy but more with respect to social privacyçthe use made of their information, rather than institutional privacy. While people are
    often concerned about privacy in the abstract, they seem less concerned about privacy in
    practice, see Raynes-Goldie, ‘Aliases, Creeping and Wall Cleaning: Understanding Privacy in
    the Age of Facebook’ (2010) 15 First Monday, available at: http://www.uic.edu/htbin/cgiwrap/
    bin/ojs/index.php/fm/article/view/2775/2432 [last accessed 29 January 2013].
    22 See Lloyd, Information Technology Law, 6th edn (Oxford: Oxford University Press, 2011) at 86^
    122; Simmons, ‘Facebook and the Privacy Frontier’ (2012) 33 Business Law Review 58; La Rue,
    supra n 2 at paras 53^59; Mendel, infra n 82 at 50^94; and Lanois, ‘Privacy in the Age of
    the Cloud’ (2011) 15 Journal of Internet Law 3. See also Morley v Information Commissioner
    EA/2011/0173, 31 May 2012, First Tier Tribunal (Information Rights) (names of youth councillors including minors, involved in a planning application were not exempt from disclosure
    under Section 40(2) Freedom of Information Act 2002, as they were on the youth council’s
    Facebook page).
    23 In a number of jurisdictions Facebook has settled lawsuits or made settlements with regulatory agencies, see Tofalides and Colclough, ‘Can Facebook and User Privacy Co-exist?’ (2012)
    Intellectual Property Magazine 54; on the problems Facebook has had with privacy laws in the
    United States and EU, see ‘Note on Lane v Facebook Inc.’ (2010) 16 Computer and
    Telecommunications Law Review N5-6 (on the 2009 settlement of a class action lawsuit over
    privacy issues brought against Facebook in the US District Court for the Northern District of
    California, relating to the sending of reports on members’ browsing activities on affiliates’
    websites and their publication on Facebook).
    24 See Gillespie, Child Exploitation and Communication Technologies (Dorset: Russell House
    Publishing, 2008); De-Miguel-Molina, Oltra-Gutierrez and Sarabdeen, ‘An Exploratory Study
    on the Privacy of Children’s Images in Spain’s Most Widely Used Social Network Sites (Tuenti
    and Facebook)’ (2010) 24 International Review of Law Computers & Technology 277.
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    new forms of communication are impacting on legal procedures,25 legal
    processes26 and raising novel investigatory and evidential issues.27
    Examination of the social media profiles of applicants could become relevant to
    admission to the legal profession.28 The application of some existing laws to
    social networking,29 often based on earlier legislation,30 has arguably been inappropriate but the nature and speed of growth of social networking has made
    it difficult for the law to keep pace.31
    25 See ‘Practice Guidance: The Use of Live Text-Based Forms of Communication (Including
    Twitter) from Court for the Purposes of Fair And Accurate Reporting’, 14 December 2011,
    issued by the Lord Chief Justice of England and Wales, available at: http://www.judiciary.
    gov.uk/Resources/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf [last accessed 29
    January 2013]; and Gerry, ‘Facebook Breeds Contempt’ (2011) 155 Solicitors Journal 11, discussing the case of Joanne Fraill, a juror sentenced to eight months’ imprisonment for
    contempt of court after communicating with an acquitted defendant before the trial had
    26 See Salib, ‘Coming Soon: Service via Facebook?’ (2009) Civil Justice Quarterly 297, considering
    the decision of the Australian Capital Territory Supreme Court in MKM Capital v Corbo
    (2008), which authorized a default judgment relating to the repossession of a house to be
    served via a private message on Facebook; and XY v Facebook Ireland Ltd [2012] NIQB 96 (interim injunction granted requiring Facebook to remove from its site a page entitled ‘Keeping
    Our Kids Safe from Predators’. This was the fourth interim injunction granted by Northern
    Ireland’s High Court against Facebook).
    27 See O’Floinn and Ormerod,‘Social Networking Sites, RIPA and Criminal Investigations’ (2011)
    Criminal Law Review 766 and ‘Social Networking Material as Criminal Evidence’ (2012)
    Criminal Law Review 486; and Stretton, ‘Anything You Tweet or Post Can and Will Be Used
    Against You’ (2011/12) 22 Computers & Law 36 (on use of SNS evidence in various proceedings, e.g. divorce, and the issues of authentication, manipulation and disclosure of SNS
    28 On the proposal of the Florida Board of Bar Examiners (FBBE) to screen the social network
    accounts of certain applicants to the Florida Bar, see O’Brien, ‘Facebook v the Florida Bar’
    (2011) 1 International Journal of Public Law and Policy 127 (suggesting that FBBE’s draft guidelines are unduly vague in terms of the definition of ‘personal websites’ and the standards of
    appropriate social network service use). More generally, employers can investigate prospective
    job applicants’ SNS activities and comments about them. The UK Information
    Commissioner’s Office has warned employers in the UK that it would have very serious concerns if they were to ask for Facebook login and password details from existing or would-be
    employees. Following reports of such demands in the United States, see Arthur, ‘Employers
    Warned Against Demanding Facebook Details from Staff’, The Guardian, 26 March 2012; see
    also Sprague, ‘Rethinking Information Privacy in an Age of Online Transparency’ (2009) 25
    Hofstra Labour and Employment Journal 395 at 397^400. Sprague notes (at 411^17) that a
    number of US states specifically restrict the ability of employers from considering off-site,
    off-work, lawful conduct in hiring decisions.
    29 See Rowbottom, supra n 11.
    30 For example, section 127 of the Communications Act 2003, considered in Part 2 below, is
    based on section 43 of the Telecommunications Act 1984.
    31 Scaife,‘The Regulation of Social Media’ (2012) 14 E-Commerce Law & Policy 6 (current legislation is insufficient to govern the use of social media; there is a need for a consolidated legal
    framework or significant guidance on the application of existing legislation in order to
    ensure offenders are dealt with fairly); Edwards, ‘Section 127 of the Communications Act
    2003: Threat or Menace?’ Society of Computers and Law, 9 October 2012, available at:
    http://www.scl.org/site.aspx?i¼ed28102 [last accessed 29 January 2013] (Section 127 is not
    drafted to fit modern guarantees of freedom of speech in public. It was designed primarily to
    regulate one-to-one communications, rather than one-to-many broadcasting and to safeguard a public utility built with public money. It was now being applied to a privately
    owned, though publicly accessed, many-to-many communications domain).
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    For states, SNSs can represent an uncontrolled danger.32 There was evidence that those involved in riots in the UK in 2011 had used SNS messaging
    to co-ordinate disturbances across London and other cities.33 There was also
    evidence that SNSs have played a significant part in the Arab Spring ^ the
    spread of democratic revolutions in the Arab World.34 Many states have
    imposed ‘Blocking’ measures taken to prevent certain content from reaching
    an end-user. These include ‘preventing users from accessing specific websites,
    Internet Protocol (IP) addresses, domain name extensions, the taking down of
    websites from the web server where they are hosted, or using filtering technologies to exclude pages containing keywords, such as democracy or human
    rights, or other specific content from appearing’.35 For an individual there is
    an empowering and liberating element in SNSs. Major celebrities can have millions of followers.36 But non-celebrities can also create and communicate
    with wide social networks. Perhaps inevitably, the empowerment provided by
    the internet has proved intoxicating and led individuals to issue communications as though they were within a ‘Wild West’ type, law-free, zone in
    Cyberspace.37 In the UK, for a small number of individuals, this has proved
    to be a catastrophic mistake and they have been left facing a criminal
    32 See Meuller, Networks and States: The Global Politics of Internet Governance (Cambridge, MA:
    MIT Press, 2010). In December 2012, the Chinese Government issued new rules requiring
    Internet users to provide their real names to service providers, while assigning Internet companies greater responsibility for deleting forbidden postings and reporting them to the authorities: see Bradsher, ‘China Toughens Its Restrictions on Use of the Internet’, The New York
    Times, 28 December 2012.
    33 See R v Blackshaw [2011] EWCA Crim 2312. Though representatives from Blackberry, Facebook
    and Twitter argued before the UK Home Affairs Select Committee that social media were a
    ‘force for good’ during the riots as they were used by innocent people to ensure their friends
    were safe; they were also used by the police themselves. The Select Committee considered
    that it would be ‘actively unhelpful to switch off social media during times of widespread
    and serious disorder’. See Policing Large Scale Disorder: Lessons from the Disturbances of
    August 2011, Sixteenth Report of Session 2010^12, HC 1456-I, 27^30 at 30.
    34 It has been suggested that Wael Ghonim’s tweet for people to join him in an Egyptian village
    square lead to the downfall of Egypt’s political powers. He was hailed on Facebook and
    Twitter as a hero: see O’Loughlin, ‘Revolution 2.0 by Wael Ghonim’, The Telegraph, 13 January
    35 La Rue, supra n 2 at paras 29^32.
    36 Lady Gaga is reported to have a following of more than thirty million, see ‘The Twitaholic.com
    Top 100 Twitterholics Based on Followers’, available at: http://twitaholic.com/ [last accessed
    29 January 2013].
    37 See Yen, ‘Western Frontier or Feudal Society? Metaphors and Perceptions of Cyberspace’
    (2002) 17 Berkeley Technology Law Journal 1207. A common error has been for individuals to
    assume that once information is on the internet it can be republished because it has already
    been published in the public domain, whereas the issue is ‘whether, notwithstanding some
    publication, there remains a reasonable expectation of some privacy’. See CTB v News Group
    Newspapers Limited and Imogen Thomas [2011] EWHC 1232 (QB) at para 28; and Smartt,
    ‘Twitter Undermines Superinjunctions’ (2011) 16 Communications Law 135.
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    prosecution. In some cases this has led to a conviction.38 For others it has led
    to disciplinary measures and even dismissals.39
  2. Criminal Prosecutions
    The potential implications on freedom of expression in relation to SNSs and
    other internet communications are most obvious when speech or expression
    is criminalised.40 This section considers prosecutions in the UK. UK prosecutors and courts are public authorities under the Human Rights Act 1998
    (HRA 1998) and it is unlawful for them to act incompatibly with Convention
    rights.41 There is also an obligation on UK courts to interpret legislation compatibly with Convention rights if it is possible to do so.42 Relevant UK legislation includes the Protection from Harassment Act 1997,43 the Crime and
    Disorder Act 1998,44 the Public Order Act 1986,45 and, the most commonly
    38 See R v Blackshaw [2011] EWCA Crim 2312, where B had a page on Facebook entitled ‘The
    Warrington Riots’. So too in other jurisdictions: see Clinch and Liu, ‘Taiwan: Infidelity and
    Facebook Lead to Criminal Convictions’ (2012) 28 Computer Law & Security Review 246 (defendant charged with four offences after he used his own and his sister’s Facebook accounts
    to disseminate his girlfriend’s private emails, obtained after he gained the password to her
    personal email account, showing that they were not in a monogamous relationship in order
    to encourage other users to comment on what he called her immoral behaviour).
    39 See Landau, ‘The Anti-Social Network: Why Facebook Abuse Is a Matter for Employees’, The
    Guardian, 1 May 2012.
    40 See Bailin, ‘Criminalising Free Speech?’ (2011) Criminal Law Review 705; and Council of
    Europe, Convention on Cybercrime 2001, ETS 185 and its Additional Protocol concerning
    the criminalisation of acts of a racist and xenophobic nature committed through computer
    systems 2003, ETS 189. According to ReportersWithout Borders, worldwide in 2010, 109 bloggers were in prison on charges related to the content of their online expression, cited in La
    Rue, supra n 2 at para 35.
    41 See Section 6 HRA 1998.
    42 See Section 3 HRA 1998.
    43 The Act has been used successfully on several occasions to charge trolls who send repeated
    upsetting or vile messages to users on sites such as Facebook and Twitter. It prescribes that
    any two ‘acts’ which form a course of harassing conduct can be charged as a crime. In the
    first half of 2012 four UK politicians complained to police that they were being harassed by
    internet ‘trolls’: see Beckford, ‘Two MPs and Two Peers Go to Police Over Twitter Abuse’, The
    Telegraph, 21 September 2012. It has been reported that Nicola Brookes, an alleged victim of
    vicious trolling on Facebook, obtained a Norwich Pharmacal order against Facebook in order
    to reveal the true names of, and start proceedings against, her online trolls under the 1997
    44 In 2012, Liam Stacey, aged 21 years, was convicted of an offence under the Crime and
    Disorder Act 1998 for making a series of ‘racially aggravated comments’ (tweets) about footballer Fabrice Muamba who had collapsed on a football pitch and was believed to have died.
    He was sentenced to fifty-six days in jail.
    45 See Bailin, supra n 40; and Seymour, ‘Azhar Ahmed ^ Charged with Treason Over Facebook
    Comments?’, The Guardian, 15 March 2012. Ahmed was actually prosecuted for a ‘racially
    aggravated public order offence’ over a statement about the British Army in Afghanistan
    that appeared on his Facebook page. It included the comment that ‘all soldiers should die and
    go to hell’. He was convicted and sentenced to two hundred and forty hours of community
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    used provision, Section 127(1)(a) of the Communications Act 2003.46 The
    number of proceedings in Magistrates’ Courts in England and Wales for offences under Section 127(1)(a) from commencement (25 July 2003) to 31
    December 2011 was 3,345.47 Section 127(1)(a) makes it an offence to send a
    message using a ‘public electronic communications network’ if that message is
    ‘grossly offensive or of an indecent, obscene or menacing character’. It can be used
    as an alternative offence to such crimes, for example, as hate crime (including
    race, religion, disability, homophobic, sexual orientation and trans-phobic
    crime), hacking offences, cyber bullying and cyber stalking, amongst others.48
    The offence is committed once the message is sent, irrespective of whether it
    is received by any intended recipient or anyone else.
    A. ‘Grossly Offensive’
    The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, who need not be the recipients.49 In Director
    of Public Prosecutions v Collins50 the House of Lords considered that it was justifiable under Article 10(2) of the ECHR to prosecute somebody who has used
    the public telecommunications system to leave racist messages.51 In July 2012
    Daniel Thomas (T), a semi-professional footballer, posted a homophobic message on Twitter. This related to the UK Olympic divers Tom Daley and Peter
    Waterfield. This became available to his ‘followers’. Someone else distributed it
    more widely. T was arrested and interviewed. The matter was then referred to
    CPS Wales to consider whether T should be charged with a criminal offence.
    The case attracted international publicity and in response, Keir Starmer, the
    Director of Public Prosecutions (DPP), issued a ‘Statement on Tom Daley case
    and social media prosecutions’.52 The key question addressed was whether the
    message was so ‘grossly offensive’ as to be criminal and, if so, whether a prosecution was required in the public interest. The DPP had no doubt that the
    message posted by T was offensive and would be regarded as such by reasonable members of society. But the critical question was whether it was so
    46 See Ormerod, ‘Telecommunications: Sending Grossly Offensive Message By Means of a Public
    Electronic Communications Network’ (2007) Criminal Law Review 98.
    47 Combining figures from Crispin Blunt (Parliamentary Under Secretary of State (Prisons and
    Probation), Hansard, HC Deb, Vol 511, col 322W (14 June 2010); and Wright, Hansard, HC Vol
    552, col 824W, 9 November 2012. The annual number increased from 498 in 2007 to 1,286
    in 2011.
    48 Crown Prosecution Service, ‘Legal Guidance on Communications Offences’, available at:
    http://www.cps.gov.uk/legal/a_to_c/communications_offences, [last accessed 29 January 2013].
    49 DPP v Collins [2006] 1 WLR 2223. The message in Collins related to ethnic minorities.
    50 Ibid.
    51 See also Wainwright,‘ManWho RaciallyAbused Stan Collymore on Twitter Spared Prison’,The
    Guardian, 21 March 2012.
    52 See http://blog.cps.gov.uk/2012/09/dpp-statement-on-tom-daley-case-and-social-media-prose
    cutions.html, 20 September 2012 [last accessed 29 January 2013].
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    ‘grossly offensive’ that criminal charges should be brought. The distinction was
    an important one and not easily made. The ECtHR’s statement in Handyside
    that the right to freedom of expression included the right to say things or express opinions that offended people was recalled.53 Context and circumstances
    were highly relevant and in this case included that: (a) however misguided, T
    intended the message to be humorous; (b) however na|«ve, T did not intend the
    message to go beyond his followers, who were mainly friends and family; (c) T
    took reasonably swift action to remove the message; (d) T had expressed remorse and was, for a period, suspended by his football club;54 (e) neither
    Daley (D) nor Waterfield (W) were the intended recipients of the message and
    neither knew of its existence until it was brought to their attention following
    reports in the media; (f) it was, in essence, a one-off offensive Twitter message,
    not part of a campaign, and not intended to incite others. On a full analysis of
    the context and circumstances in which this single message was sent, the
    Prosecutor decided that it was not so grossly offensive that criminal charges
    needed to be brought. Before reaching a final decision, D and W had been consulted and both indicated that they did not think this case needed a
    The timeliness of the DPP’s Statement was quickly highlighted by subsequent cases. In September 2012 the police arrested Neil Swinburne, aged 22
    years, over an offensive Facebook tribute page set up following the fatal shooting of two female police officers in Manchester.56 In October 2012 Matthew
    Woods, aged 19 years, pleaded guilty to making ‘grossly offensive’ remarks
    about a missing five-year-old girl, April Jones, on his Facebook page. He was
    sentenced to twelve weeks in prison.57
    B. ‘Of an Indecent, Obscene or Menacing Character’
    Contracting states to the ECHR are accorded a margin of appreciation but a
    prosecution for sending an ‘indecent’ or ‘obscene’ message would almost
    53 Handyside v United Kingdom, supra n 12.
    54 A number of professional associations and sports teams in the UK have fined players for issuing homophobic comments or bringing the game into disrepute: see, for example, ‘Man Utd’s
    Federico Macheda Fined for Homophobic Tweets’, 5 March 2012, available at: http://www.
    bbc.co.uk/sport/0/football/17178936 [last accessed 29 January 2013].
    55 The victims in SNS cases will always have the dilemma that prosecution will inevitably give
    rise to even wider publication of the relevant statements. It is not normal to consult victims
    on whether individual defendants should be prosecuted. The implication of the statement
    (supra n 52) seems to be that the victims’ views went to the question of whether it was in
    the public interest to prosecute, rather than whether the message was grossly offensive.
    56 See Carter, ‘Police Killings: Man Arrested Over Dale Cregan Facebook Page’, The Guardian, 20
    September 2012, available at: http://www.guardian.co.uk/uk/2012/sep/20/police-killingsarrest-cregan-facebook [last accessed 29 January 2013]. Facebook removed the tribute page.
    In February 2013 Cregan pleaded guilty to the murder of two policewomen.
    57 See Rozenberg, ‘April Jones Facebook Comments: Should Matthew Woods Be in Prison?’, The
    Guardian, 9 October 2012.
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    inevitably raise an Article 10 of the ECHR issue given longstanding jurisprudence that the right to freedom of expression includes the right to say things
    or express opinions ‘that offend, shock or disturb the state or any sector of the
    58 ‘Obscene’ messages may pass scrutiny with less difficulty than
    ‘indecent’ ones. By contrast it is not too difficult to envisage that a prosecution
    for sending a message of a ‘menacing character’ might be ECHR compliant in
    some circumstances. In Chambers v Director of Public Prosecutions,
    59 C, aged
    26 years, had sent a message sent on Twitter in January 2010. In it he threatened to blow up an airport that C was due to travel from to meet someone,
    but which had closed because of weather problems. C was convicted of sending
    a message of a ‘menacing character’. The Crown Court upheld this on the
    basis that the message was ‘menacing per se’ and that C was aware that his
    message was of a menacing character. However, the Divisional Court of the
    High Court quashed the conviction on the basis that the message was not of a
    menacing character because it was intended as a joke.60 Before concluding
    that a message was criminal on the basis that it represented a menace, its precise terms, and any inferences to be drawn from its precise terms, needed to
    be examined in the context in and the means by which the message was sent.
    The offence was not directed to the inconvenience which may be caused by
    the message. The message did not represent a terrorist threat, or indeed any
    other form of threat. It was posted on ‘Twitter’ for widespread reading, a conversation piece for C’s followers, drawing attention to himself and his predicament. It was not sent to anyone at the airport or anyone responsible for
    airport security, or indeed any form of public security. The grievance addressed
    by the message was that the airport was closed when C wanted it to be open.
    The language and punctuation were inconsistent with C intending it to be or
    to be taken as a serious warning. Moreover, it was unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did. It was difficult to imagine a serious threat in which warning of it is
    given to a large number of tweet ‘followers’ in ample time for the threat to be
    reported and extinguished.61 Significantly, the Divisional Court upheld the
    Crown Court ruling that although Twitter was a private company, the
    58 Handyside v United Kingdom supra n 53; and Perrin v United Kingdom Application No 5446/03,
    Admissibility, 18 October 2005 (concerning prosecution for obscene material published on
    the internet, held inadmissible).
    59 [2012] EWHC 2157 (Admin) DC.
    60 See Gillespie, ‘Twitter, Jokes and the Law’ (2012) Journal of Criminal Law 364. In November
    2012, Chinese authorities arrested a blogger, Zhai Xiaobing, for a Twitter joke relating to the
    Communist leadership Congress in Beijing, see ‘China Arrests Blogger for Twitter Joke’, The
    Guardian, 21 November 2012, available at: http://www.guardian.co.uk/world/2012/nov/21/
    china-arrest-blogger-twitter-joke [last accessed 29 January 2013].
    61 Chambers v DPP, supra n 59 at para 31. Although C’s appeal was successful he was sacked
    from his job and banned from the airport concerned for life.
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    messages were processed through the internet and the internet was inherently
    a ‘public electronic communications network’.62
    C. The DPP’s Interim Guidelines
    The DPP’s Statement on social media prosecutions noted that the Crown
    Prosecution Service (CPS) was considering a growing number of cases involving the use of social media and that there were likely to be many more. It
    observed that the context in which this interactive social media dialogue took
    place was quite different to the context in which other communications took
    place and that the task for the CPS involved ‘balancing the fundamental right
    of free speech and the need to prosecute serious wrongdoing on a case by
    case basis’.63 That often involved very difficult judgment calls and, in the largely unchartered territory of social media, the CPS was proceeding on a
    case-by-case basis. In some cases it was clear that a criminal prosecution was
    the appropriate response to conduct that was complained about. For example,
    where there was a sustained campaign of harassment of an individual, where
    court orders were flouted or where grossly offensive or threatening remarks
    were made and maintained. But in many other cases a criminal prosecution
    would not be the appropriate response. If the fundamental right to free speech
    was to be respected, the threshold for criminal prosecution had to be a high
    one and a prosecution had to be required in the public interest.64 The DPP
    also announced that he intended, after consultation, to issue guidelines on
    social media cases for prosecutors. More generally though he suggested that
    social media was a new and emerging phenomenon that raised difficult issues
    of principle. The ‘time has come for an informed debate about the boundaries
    of free speech in an age of social media’.65
    The DPP published Interim Guidelines on prosecuting cases involving communications sent via social media66 on 19 December 2012 and they applied
    with immediate effect.67 It is striking how much the Guidelines are directed
    62 Ibid. at para 23. On the significant regulatory consequences of this see Watson and Ingram,
    ‘The Twitter Joke Judgment: The Law with Unintended Consequences?’ Society of Computers
    and Law, 17 August 2012, http://www.scl.org/site.aspx?i¼ed27370 [last accessed 29 January
    63 DPP Statement, supra n 52.
    64 Ibid.
    65 Ibid.
    66 Available at: http://www.cps.gov.uk/consultations/social_media_consultation.pdf [last accessed
    29 January 2013].
    67 The CPS is responsible for England and Wales. The Crown Office in Scotland has decided not
    to issue similar guidelines but stated that it would continue to take a ‘robust approach’ to offensive material. There have been a number of prosecutions in Scotland for material posted
    on SNS sites: see Procurator Fiscal at Edinburgh v Raymond Strachan, 17 July 2011, available
    at: http://www.crownoffice.gov.uk/News/Releases/2012/07/Procurator-Fiscal-Edinburgh-vRaymond-Strachan [last accessed 29 January 2013].
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    towards ensuring compliance with Article 10 of the ECHR. They distinguished
    between two categories of cases. The first included communications that constituted credible threats of violence to persons or damage to property (this
    would include menacing communications), which specifically targeted one or
    more individuals and those which might amount to breach of a court order.
    All of these were to be prosecuted robustly.68 In the second category were
    those which may be considered grossly offensive, indecent, obscene or false.
    These cases ‘will be subject to a high threshold and in many cases a prosecution
    is unlikely to be in the public interest’.69 The rationale for this was the potential
    for a ‘chilling effect’ of prosecutions for social media communications on free
    speech.70 With respect to the high threshold it was stressed that the criminal
    law provisions had to be interpreted consistently with the free speech principles in Article 10 of the ECHR as interpreted by the ECtHR. It was suggested
    that the common law took a similar approach. The requirement that a communication be ‘grossly’ offensive was highlighted as was the importance of context. Prosecutors should have regard to the fact that the context in which
    interactive social media dialogue takes place was quite different to the context
    in which other communications take place: ‘Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often
    spontaneous. Communications intended for a few may reach millions.’71
    Reference was made to the description of Eady J in Smith vADVFN72 in relation
    to comments on an internet bulletin board: ‘[they are] like contributions to a
    casual conversation (the analogy sometimes being drawn with people chatting
    in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a
    certain amount of repartee or ‘‘give and take’’.’Against this background, prosecutors should only proceed with cases under Section 1 of the Malicious
    Communications Act 1988 and Section 127 of the Communications Act 2003
    where they were satisfied that the communication in question was ‘more
    than offensive, shocking or disturbing; or satirical, iconoclastic or rude comment; or the expression of unpopular or unfashionable opinion about serious
    or trivial matters, or banter or humour, even if distasteful to some or painful
    to those subjected to it’.73 Even if so satisfied, prosecutors should go on to consider whether a prosecution was required in the public interest. As both provisions engaged Article 10 of the ECHR no prosecution should be brought
    unless it could be shown on its own facts and merits to be both necessary
    and proportionate. A prosecution was unlikely to be both necessary and
    68 Interim Guidelines, supra n 66 at paras 12^23.
    69 Ibid. para 13 (emphasis in original).
    70 Ibid. para 29.
    71 Ibid. para 35.
    72 [2008] EWHC 1797 (QB).
    73 Interim Guidelines, supra n 66 at para 36.
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    proportionate where the suspect had swiftly taken action to remove the communication or expressed genuine remorse; swift and effective action had been
    taken by others, for example, service providers, to remove the communication
    in question or otherwise block access to it; the communication was not intended for a wide audience, nor was that the obvious consequence of sending
    the communication; particularly where the intended audience did not include
    the victim or target of the communication in question; or the content of the
    communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects
    freedom of expression.74 The age and maturity of suspects should be given significant weight, particularly if they were under the age of 18 years. Children
    may not appreciate the potential harm and seriousness of their communications and a prosecution was rarely likely to be in the public interest.75
    D. Lessons from Criminal Jurisprudence
    In terms of criminal law one cannot but admire the common sense approach of
    the DPP and the Interim Guidelines in relation to social media cases and his
    call for an ‘informed debate about the boundaries of free speech in an age of
    social media’.76 It is clear that consideration of all of the factors in the Interim
    Guidelines, particularly the idea of a high threshold and the strong indications
    of where there is unlikely to be a public interest in prosecuting, will assist in
    ensuring that any prosecutions are consistent with Article 10 of the ECHR
    and Article 19 of the ICCPR. Such sensible and detailed prosecutorial guidance
    may mitigate dated legislation whose application could otherwise be incompatible with human rights standards.77 However, the rise in prosecutions and the
    astonishing growth in the quantity of SNSs would suggest that the relevant
    statutory provisions need to be thoroughly modernised to ensure their compatibility with international human rights standards. The prosecution in
    Chambers78 in particular suggests that relying on the exercise of good sense
    carries unacceptable risks in human rights terms. Laws that clearly interfere
    with rights to privacy and freedom of expression, including religious views,
    need to be accessible and foreseeable so that individuals can know and understand, or at least get advice on, the risks they run.79 The debate needs to be
    74 Ibid. para 36.
    75 Ibid. para 41; see also paras 42^44 on public order legislation. See also Gillespie,‘Adolescents,
    Sexting and Human Rights’ (2013) 13 Human Rights Law Review (forthcoming).
    76 See supra n 65.
    77 See Scaife, supra n 31; Edwards, supra n 31; and Rowbottom, supra n 11.
    78 See supra n 59.
    79 See Purdy v Director of Public Prosecutions [2009] UKHL 45; [2009] 3 WLR 403; Cleary, ‘From
    ‘‘Personal Autonomy’’ to ‘‘Death-on-Demand’’: Will Purdy v DPP Legalize Assisted Suicide in the
    United Kingdom?’ (2010) 33 Boston College International and Comparative Law Review 289, available at: http://lawdigitalcommons.bc.edu/iclr/vol33/iss2/4 [last accessed 29 January 2013]
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    informed by a proper understanding of the massive sociological and societal effects of SNSs. The informed debate may well reveal that there is simply much
    greater societal acceptance of quite a high level of offensive content on
    SNSs.80 At least those who actually engage in Facebook activity may have to
    meet the argument that there might be a deemed element of knowledge or acceptance of exposure to a high threshold of offensiveness.81 If so, the law
    needs to reflect this.
  3. Civil Actions
    A. Defamation, Privacy, Discrimination and Harassment
    In the UK, publication on the internet in general,82 and on SNSs83 in particular, can constitute defamation84 or breach informational privacy rights85
    80 Cf Levmore and Nussbaum (eds), Offensive Internet: Speech, Privacy, and Reputation
    (Cambridge, MA: Harvard University Press, 2010).
    81 The analogy might be with attending a movie rated as ‘18’.
    82 See Mendel, Puddephatt, Wagner, Hawkin and Torres, Global Survey on Internet Privacy and
    Freedom of Expression, (Geneva: UNESCO Publishing 2012), available at: http://unesdoc.
    unesco.org/images/0021/002182/218273e.pdf [last accessed 29 January 2013].
    83 See Khan, ‘The Threat Posed to Reputation by the Emergence of Social Web Technologies’
    (2012) 23 Entertainment Law Review 126.
    84 There are a number of possible defences: see Collins, The Law of Defamation and the Internet,
    3rd edn (Oxford: Oxford University Press, 2010); Applause Store Productions Ltd v Raphael
    [2008] EWHC 1781 (QB); [2008] Info TLR 318 (awarding a non-user of the Facebook social networking website and his company damages of »GBP22,000 for libel and breach of privacy,
    after a former school friend had placed a fake personal profile and group on Facebook);
    Cairns v Modi [2012] EWHC 756 (QB); [2012] EWCA Civ 1382 (defamatory comments originally
    made on Twitter); Tilbrook v Parr [2012] EHHC 1946 (QB) (racist allegations on an internet
    blog); McGrath v Dawkins 30 March 2012, Westlaw 2012 WL 1555287 (on defence for service
    providers to libel actions under the Electronic Commerce (EC Directive) Regulations 2002
    Regualtion19). Cf, on US defamation law, see Angelotti, ‘Twibel Law: What Defamation and
    Its Remedies Look Like in the Age of Twitter’, available at: http://works.bepress.com/ellyn_
    angelotti/1/ [last accessed 29 January 2013]; Azriel,‘Social Networking as a Communications
    Weapon to Harm Victims: Facebook, Myspace, and Twitter Demonstrate a Need to Amend
    Section 230 of the Communications Decency Act’ (2009) 26 John Marshall Journal of
    Computer and Information Law 415.
    85 See Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2 AC 1232; AAA v
    Associated Newspapers [2012] EWHC 2103 (QB). In the UK there is no tort for invasion of privacy, seeWainwright v Home Office [2003] UKHL 53; [2003] 3 WLR 1137, though the President
    of the UK Supreme Court has acknowledged that a right to information privacy may now
    have been accepted, see Lord Neuberger, ‘Privacy in the 21st Century’, 28 November 2012,
    available at: http://www.supremecourt.gov.uk/docs/speech-121128.pdf [last accessed 29
    January 2013]. See also Nesbitt v Neufeld (2011) British Columbia Court of Appeal 529 (upholding a fine of 40,000 Canadian Dollars for defamation and invasion of privacy after the appellant used the internet, including Facebook, to denigrate his child’s mother), available at:
    http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca529/2011bcca529.html [last accessed 29
    January 2013]; and Jones v Tsige, Ontario Court of Appeal (2012) ONCA 32, recognising the
    tort of invasion of privacy in Ontario.
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    protected by Article 8 of the ECHR,86 or constitute unlawful discrimination or
    harassment.87 Two or more sets of postings on a SNS may be considered to be
    one continuous act up until the last posting occurred and so the of limitation
    period may run from the time of the last posting.88
    In the aftermath of a story on BBC’s Newsnight in 2012, thousands of people
    wrote or re-tweeted a false accusation that Lord M was a child abuser. The allegation was based on a mistaken identity. The BBC settled the defamation
    claim in relation to Newsnight for some »185,000,89 but Lord M threatened
    legal action against those who had tweeted the allegation. In February 2013
    the threat of legal action against those with fewer than five hundred Twitter
    followers was dropped in return for a modest charitable donation to Children
    in Need. People with more than five hundred Twitter followers who tweeted
    the peer’s name, including Sally Bercow, the wife of the Speaker of the House
    of Commons, and George Monbiot, a columnist for The Guardian newspaper,
    face individual action. Bercow apologised but argued that her tweet was foolish rather than libelous. She is now the focus of legal action. Monbiot apologised unreservedly. The Guardian newspaper would not pay Monbiot’s legal
    costs as he was not a member of its staff and was tweeting in a personal
    (i) Employee cases
    A small but growing number of cases in the UK have concerned disciplinary
    action taken by an employer against an employee because of comments
    posted on Facebook. In Preece v J.D.Wetherspoon Plc,
    90 P, who worked in a pub,
    was fairly dismissed for offensive comments that she posted on Facebook concerning customers. Although P did not mention the workplace by name, the
    comments she made were clearly in relation to her work. In Stephens v
    Halfords Plc91 S created a Facebook page entitled, ‘Halford workers against
    86 See Marsoof, ‘Online Social Networking and the Right to Privacy: The Conflicting Rights of
    Privacy and Expression’ (2011) 19 International Journal of Law & Information Technology 110;
    and Mindell, ‘Rewriting Privacy: The Impact of Online Social Networks’ (2012) 23
    Entertainment Law Review 52.
    87 See Otomewo v CarphoneWarehouse Ltd ET/2330554/2011, July 2012 (sabotage of heterosexual
    employee’s Facebook page, by other employees, to suggest he was gay was sexual orientation
    harassment. The employer was vicariously liable for the actions of the employees; its employees, in the course of their employment, had made the entries. The employees’ actions
    took place at work and during working hours, and involved dealings between staff and their
    88 See Novak v Phones 4U Ltd UKEAT/0279/12/JOJ, 14 September 2012.
    89 They also settled with ITV, the largest commercial television network in the UK, for »120,000
    in relation to an incident on live television on the This Morning show in which the presenter
    Phillip Schofield handed a piece of paper to Prime Minister David Cameron saying it was a
    list of senior Tories who were being linked on the internet to a paedophile ring, presumably
    including Lord M. The list was visible for a short period.
    90 Case No ET/2104806/10, May 2011.
    91 Case No ET/1700796/10, February 2011.
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    working three out of four weekends’ recording his dissatisfaction at proposed
    workplace changes. S realised that the page breached the company’s policy
    and quickly took it down. The page was considered not to be grossly offensive.
    S fully acknowledged that he should not have done what he did and gave a
    full apology saying in mitigation that he had been off ill with stress and his
    judgment had been clouded. S also confirmed during the internal disciplinary
    process that it would never happen again. The Tribunal held S had been unfairly dismissed. In Whitham v Club 24 Ltd (t/a Ventura),
    92 W, who worked for a
    company that provided customer services for Volkswagen, was unfairly dismissed for misconduct after posting comments about her workplace on
    Facebook. Her comments were visible to her Facebook friends including colleagues but not to the general public. The comments were relatively mild,
    were not about Volkswagen as such and did not involve any confidential information. Moreover, it was considered to be highly unlikely that such mild comments by a junior employee could jeopardize the commercial relationship
    between her company and Volkswagen. The dismissal was held to fall outside
    the band of reasonable responses. Similar cases can be found in other jurisdictions including Ireland,93 Canada,94 the United States95 and France.96 It
    would appear that an employee who is unrepentant in his or her belief that
    his or her behaviour was not misconduct may lead the employer to the reasonable conclusion that the same thing might happen again in future. However,
    if an employee recognises that his or her actions were wrong and confirms
    92 Case No ET/1810462/10, September 2011.
    93 See Azad v Tesco Ireland Ltd (2012) (EAT Ireland), available at: http://thepeninsulairelandblog.
    files.wordpress.com/2012/10/azad-v-tesco-ireland-ud2311-2010.pdf [last accessed 29 January
    2013], where an employer was ordered to pay EUR 7,500 for dismissing an employee for
    gross misconduct without following due procedure when investigating the alleged
    94 Lougheed Imports Ltd (t/aWest Coast Mazda) v United Food and CommercialWorkers International
    Union British Columbia Labour Relations Board, Local 1518, 2010 CanLII 62482, 22 October
    2010 (upholding the termination of two employees by a car dealership over comments they
    posted on Facebook about their employer. The Board concluded that the employees had no reasonable expectation of privacy in comments made on SNSs. Furthermore, when those comments were damaging to the employer’s business or insubordinate in nature, the employer
    may have just cause for termination). The decision is one of the first in Canada to deal with
    termination on the basis of postings to an SNS.
    95 ‘US: National Labour Relations Board, in First Social Media Ruling ^ Facebook Posting Firings
    Violated Law’ (2011) 11 World Data Protection Report 19 (dismissal of five employees by
    non-profit organisation Hispanics United of Buffalo Inc., after they posted complaints about
    a co-worker on Facebook when she criticized their work, violated the National Labour
    Relations Act); and ‘US: Some Employee Complaints on Facebook Not Protected, NLRB Advice
    Division Says’ (2011) 11 World Data Protection Report 30.
    96 See Mitchell, ‘France: Internet: French Labor Panel Upholds Dismissals Based on Facebook
    ‘‘Conversation’’’ (2010) 5 World Communications Regulation Report 13 (discussing the decisions
    in Barbera v Societe Alten SIR and Southiphong v Societe Alten SIR on whether (i) posts on
    Facebook amounted to a public conversation and were therefore admissible as evidence,
    where recipients included ‘friends of friends’; and (ii) the posts were jests, where the employer
    alleged ‘incitement to rebellion against management’ and ‘denigration of the company’).
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    that there will be no repetition, the employer will find it harder to dismiss him
    or her fairly.
    The growing number of cases highlights the importance for employers of
    having clear policies regarding the use of SNSs at work97 and outside of work
    and then following their proper investigatory and disciplinary procedures. It
    is clear that that even if the comments are made outside of work and in the employee’s own time they can be relied upon by employers and used to fairly dismiss. In Teggart v TeleTech UK Limited,
    98 TeleTech UK Limited employed T as a
    customer service representative at its Belfast call centre. He posted an obscene
    comment on his Facebook page from home about the promiscuity of a female
    colleague. The comment included reference to TeleTech and was read by
    Facebook friends including work colleagues but not the female colleague mentioned. The woman subsequently heard about it and told T’s girlfriend to ask
    him to remove it. This request offended T who then posted further obscene
    comments about her on his Facebook page. After a disciplinary hearing
    TeleTech concluded that T’s conduct amounted to gross misconduct and that
    he had brought the company into disrepute. T was dismissed. T argued his
    comments were meant to be a joke and that he regularly mocked people on
    Facebook. He had also not intended to harass anyone. He complained, inter
    alia, that there had been a violation of his human rights under Articles 8, 9
    and 10 of the ECHR.
    The industrial tribunal dismissed his claim for unfair dismissal and also
    held, following the approach in X andY,
    99 that his rights under the various articles of the ECHR were not engaged. The disciplinary panel’s findings of harassment were considered reasonable as T’s Facebook comments satisfied the
    definition of harassment in TeleTech’s dignity at work policy as they were unwanted, violated the woman’s dignity and created a degrading and humiliating
    environment. It also held that harassment could occur where comments were
    directed to others and did not have to be made directly to the particular
    victim. The decision to find T guilty of bringing TeleTech into disrepute
    though was seriously flawed.100 The disciplinary panel had not dealt with the
    serious element of this charge. The supposed member of the public had not
    been interviewed or given a statement and there was little or no evidence
    that TeleTech had been brought into disrepute. However, the tribunal was satisfied that the disciplinary appeal panel would have decided to dismiss for the
    harassment charge alone and that this would have been reasonable.
    97 In 2011 it was reported that ‘48% of British Companies had Banned Twitter and Facebook At
    Work’, available at: http://www.mediabistro.com/alltwitter/twitter-banned-at-work_b8639
    [last accessed 29 January 2013]. See also Trades Union Congress, ‘Briefing on Online Social
    Networking and Human Resources’, August 2007, available at: http://www.tuc.org.uk/
    extras/facinguptofacebook.pdf [last accessed 29 January 2013].
    98 Industrial Tribunal, Northern Ireland [2012] NIIT 00704_11IT, 15 March 2012.
    99 [2004] EWCA Civ 662; [2004] IRLR 625.
    100 Teggart, supra n 98 at para 16.
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    The tribunal considered that the nature of the comments, their vulgarity
    and coarseness, the intention to create a vulgar distaste for A, the use of some
    of the postings as a retaliatory measure against the claimant when she
    sought to have the comments removed, the behaviour that was implied about
    A in the comments, the reluctance to withdraw them when it was clear that
    A had been offended, the dissemination of the comments among fellow employees of both the claimant and A, all added together put the sanction of dismissal for this act of harassment within the band of reasonable responses.101
    Articles 8, 9 and 10 of the ECHR were not engaged. T abandoned any Article 8
    right to consider that his comments were ‘private’ comments to his circle of
    friends when he posted them on his Facebook pages, to which members of the
    public could have access.102 ‘Belief’ in Article 9 was ‘intended to refer to a philosophy, set of values, principles, or mores to which an individual gives his intellectual assent or which guides his conduct or behaviour’.103 It did not extend
    to a belief about the promiscuity of another person. Finally, the right to freedom of expression in Article 10 brought with it the responsibility to exercise
    that right in a way that was necessary for the protection of the reputation
    and rights of others.104 The right did not entitle T to make comments that
    damaged the reputation or infringed the rights of A. A’s reputation had been
    harmed on the basis of a joke or fun. Furthermore, she had the right not to
    suffer harassment.105
    (ii) Smith v Trafford Housing Trust
    In UK terms the High Court decision in November 2012 in Smith v Trafford
    Housing Trust106 is the most important case to date. It highlighted the human
    rights dimension of decisions based on material appearing in SNSs. S was employed by Trafford Housing Trust as a housing manager. After reading on his
    computer a news article on the BBC news website headed ‘Gay church ‘‘marriages’’ set to get the go-ahead’, he posted a link to the BBC article on his
    Facebook wall page, together with the following comment, under his name: ‘an
    equality too far’. S had over two hundred Facebook friends. Most were fellow
    101 Ibid. at para 18.
    102 In these kinds of circumstances employees will find it difficult to establish that they have a
    reasonable expectation of privacy under Article 8 ECHR. Tweets are directed to the world at
    large and so there can be no reasonable expectation of privacy. See also Crisp v Apple Retail
    UK ET/1500258/2011, November 2011 (although Article 10 ECHR was engaged by an employee’s posts on Twitter, the employer could rely on them to justify disciplinary action to the
    extent that to do so was proportionate to the potential harm to its reputation).
    103 Teggart, supra n 98 at para 19. It cited the statement in Allen, Employment Law and Human
    Rights, 2nd edn (Oxford: Oxford University Press, 2007) at 214 that ‘[t]he limits to this concept lie in a requirement of a serious ideology, having some cogency and cohesion’.
    104 It is implicit in this holding that Article 10 was engaged by T’s comments on Facebook.
    105 Teggart, supra n 98.
    106 [2012] EWHC 3221 (Ch).
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    Christians, forty-five of them were fellow employees. Most of S’s entries concerned sport, food, motorcycles and cars. His Facebook profile identified his employer and his job title.107 Miss S, a colleague of S’s, posted a comment on S’s
    Facebook wall asking him if this meant he did not approve. S replied as follows:
    [N]o not really, I don’t understand why people who have no faith and
    don’t believe in Christ would want to get hitched in church. The bible is
    quite specific that marriage is for men and women. [I]f the state wants
    to offer civil marriage to same sex then that is up to the state; but the
    state shouldn’t impose its rules on places of faith and conscience.108
    For his two comments S was suspended. Disciplinary proceedings concluded
    that he had been guilty of gross misconduct for which he deserved to be dismissed. Only on the basis of his long record of loyal service was he demoted
    to a non-managerial position with a forty per cent reduction in pay. M sought
    damages for breach of contract. He did not commence proceedings for unfair
    dismissal in the Employment Tribunal, and did not claim to have been dismissed at all. Although Judge Briggs accepted that S’s rights to freedom of expression and to manifest his religious beliefs (S was a Christian)109 were
    undoubtedly relevant in the context of the interpretation of his employment
    contract with the Trust, he considered this was not a case in which his
    Convention rights were sought to be enforced directly, since the Trust, a private
    housing trust was not a public authority for the purposes of Section 6 of the
    HRA 1998.110
    For the Judge the first two critical questions concerned (i) the application of
    the Trust’s Code of Conduct and Equal Opportunities Policy to S’s use of his
    Facebook account, and (ii) whether, if applicable, the code of conduct or the
    policy were contravened by S making the two postings. Context was considered vital to an understanding and determination of these issues.111 Judge
    Briggs analysed the Trust’s case under three parts.
    107 Facebook users commonly provide this information.
    108 Smith v Trafford Housing Trust, supra n 106 at para 4.
    109 His claim for breach of contract was funded by The Christian Institute’s Legal Defence Fund:
    see ‘Victory for Christian Demoted Over Gay Marriage Comments’, 16 November 2012, available at: http://www.christian.org.uk/news/victory-for-christian-demoted-over-gay-marriagecomments/ [last accessed 29 January 2013]. Cf the four Christian claims in Eweida and
    Others v United Kingdom Application No 48420/10, 59842/10, 51671/10 and 36516/10, Merits,
    15 January 2013.
    110 Smith v Trafford Housing Trust, supra n at para 8. No explanation of this is given. Housing
    Trusts have been held to be public authorities is some cases, see London and Quadrant
    Housing Trust vWeaver [2009] EWCA Civ 587; [2009] 4 All ER 865.
    111 Ibid. at para 10.
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    S’s postings were ‘activities which may bring the Trust into disrepute’ contrary to the
    Code of Conduct
    Judge Briggs accepted that the Trust was entitled, after the event, to form its
    own view as to whether particular actions of an employee did or did not constitute misconduct, rather than to have to specify every possible aspect of prohibited conduct in advance, in detail. However, a code or a policy had to be
    interpreted as a whole, and particular forms of behaviour might constitute
    misconduct even though not precisely specified and prohibited. Nonetheless
    codes and policies which formed part of a contractual framework (in the
    sense that the employee was required to observe and abide by them) had to be
    objectively construed, by reference to what a reasonable person with the knowledge and understanding of an employee of the type in question would understand by the language used. If an employee was liable to be demoted and to
    have his salary substantially reduced as a result of misconduct, he must be
    entitled to ascertain from the codes and policies to which he is subjected
    what he was and was not permitted to do, and to understand the extent to
    which those obligations extended beyond the workplace into his personal or
    social life.112
    The Trust argued that by identifying himself in the abbreviated CV under his
    name on his Facebook wall as a manager of the Trust, S thereby created a real
    risk that readers of his two postings about gay marriage in church would
    think that he was expressing views on the Trust’s behalf. This would undermine the Trust’s sensible determination to maintain neutrality on contentious
    matters of religious belief and politics. The Judge rejected this argument. He
    found that S’s postings about gay marriage in church were not such as did, or
    even could, bring the Trust into disrepute.113 The critical factors were that no
    reasonable reader of S’s Facebook wall page could rationally conclude that his
    two postings about gay marriage in church were made in any relevant sense
    on the Trust’s behalf. S’s brief mention at the top of the page that he was employed as a manager by the Trust (as part of a note from his CV which also
    identified his school, his place of residence, his marital status and his date of
    birth) could not possibly lead a reasonable reader to think that his wall page
    consisted of, or even included, statements made on his employer’s behalf. A
    brief mention of the identity of his employer was in no way inconsistent with
    the general impression to be gained from his Facebook wall, that it was a
    medium for personal or social, rather than work-related, information and
    views. Viewing the entries on S’s wall for the period in question as a whole, it
    was obvious, and would have been obvious even to a casual reader, that he
    used Facebook for personal and social rather than work-related purposes. The
    112 Ibid. at para 53.
    113 Ibid. at paras 55^64.
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    gay marriage postings would have appeared automatically on the newsfeed
    pages of S’s Facebook friends. They would be divorced from the context of the
    contemporaneous postings about sport, food and motor vehicles, but also
    from S’s reference at the top of his wall page to being a manager at the Trust.
    In that context there would be no basis for the reader to make any connection
    between the postings and the Trust.
    The Trust also argued the expression of views by a manager that could
    cause distress to other employees or even customers could of itself bring the
    Trust into disrepute, even if those persons did not believe that S was in any
    sense speaking on the Trust’s behalf. In support of the Trust’s view it referred
    to the risk that the Trust might lose its recently won accreditation from the
    Albert Kennedy organisation (which supports lesbian, gay, bisexual and trans
    young people), the implication being that for the Trust to employ as a manager
    a person with S’s views would undermine its reputation for the encouragement
    and support of equal treatment of gay and lesbian people. This argument was
    also rejected. The Judge could not envisage how any such loss of reputation
    would arise in the mind of any reasonable reader of S’s postings, whether in
    the Albert Kennedy organisation or otherwise.114 The Trust prided itself on
    encouraging diversity both among its customers and its employees, and that
    encouragement of diversity formed part of its well-deserved reputation. But
    the encouragement of diversity in the recruitment of employees inevitably
    involved employing persons with widely different religious and political beliefs
    and views, some of which, however moderately expressed, might cause distress
    among the holders of deeply felt opposite views. On the assumption that S
    was not reasonably to be taken as seeking to express the Trust’s own views,
    his moderate expression of his particular views about gay marriage in
    church, on his personal Facebook wall at a weekend out of working hours,
    could not sensibly lead any reasonable reader to think the worst of the Trust
    for having employed him as a manager.
    Whether S was by his postings promoting his religious views contrary to that part
    of the Code of Conduct dealing with relationships with customers, members of the
    public and colleagues
    The Judge referred to the relevant passage in the Code of Conduct stating that
    ‘The Trust is a non-political, non-denominational organisation and employees
    should not attempt to promote their political or religious views.’ Neither of S’s
    comments could sensibly be described as ‘promotion’. The question raised was
    the extent to which a reasonable managerial employee would think that this
    114 Ibid. at para 62.
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    purported to lay down any rule or instruction about how he (or she) should
    behave outside the workplace or the work context. The right of individuals to
    freedom of expression and freedom of belief, taken together, meant that they
    were in general entitled to promote their religious or political beliefs, providing
    they did so lawfully. An employer could legitimately restrict or prohibit such
    activities at work, or in a work-related context, but it was described as ‘prima
    facie surprising to find that an employer had, by the incorporation of a code
    of conduct into the employee’s contract, extended that prohibition to his personal or social life’.115
    The Trust argued that, to S’s knowledge, some forty-five of his Facebook
    friends were fellow employees of the Trust and one of them was both a board
    member and customer of the Trust. This necessarily created a ‘work-related
    context’ to any use by him of his Facebook pages, sufficient to attract the prohibition against promotion of religious or political views in the Code of
    Conduct and the Equal Opportunities Policy. On the basis of an interpretation
    of those documents, and of their application in a fact intensive context, the
    Judge rejected this argument.116 The prohibition on the promotion of political
    or religious views lay very much at the work-related end of the spectrum.
    That was because of its obvious potential to interfere with the employee’s
    rights of freedom of expression and belief. It had been conceded that the Code
    did not in any way prohibit S from preaching in church, even if a number of
    his work colleagues chose to attend. Nor would it prohibit an employee from
    canvassing for a political party, merely because a number of his work colleagues happened to live in the residential area allocated to him for canvassing
    purposes. The prohibition could not be rigidly confined to the workplace, or to
    working hours. For example, an employee might compose a piece of political
    or religious promotion and send it by email targeted at his work colleagues.
    He would not escape the prohibition in the Code merely by doing so in the
    evening from his home, rather than from his work computer. However, S’s
    Facebook wall was inherently non-work related. While identifying himself as a
    manager at the Trust, he plainly and visibly used it for the expression of personal views about matters that had nothing whatsoever to do with his work.
    His Facebook was ‘an aspect of his social life outside work, no less than a pub,
    a club, a sports ground or any other physical (or virtual) place where individuals meet and converse’.117 Although S’s Facebook wall was not purely private,
    in the sense of being available only to his invitees (due to its ‘friends of friends’
    extension), it was not in any sense a medium by which S could, or did, thrust
    115 Ibid. at para 66.
    116 Ibid. at paras 67^79. For the Judge (at para 68) the question was ‘what do the particular provisions of these documents mean, rather than what extent of interference in an employee’s
    personal and social life is permissible to a private (rather than public body) employer.’ The
    latter question would be more directly raised if the employer was a public authority for the
    purposes of the HRA 1998, see supra n 110.
    117 Ibid. at para 75.
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    his views upon his work colleagues, in the sense in which a promotional email
    sent to all their addresses might fairly be regarded. His Facebook wall was primarily a virtual meeting place at which those who knew of him, whether his
    work colleagues or not, could at their own choice attend to find out what he
    had to say about a diverse range of non-work-related subjects. Even to the
    extent that his Facebook wall was accessible to friends of friends, actual access
    would still depend upon the persons in that wider circle taking the trouble to
    access it.118 It made no difference to that analysis that postings on S’s wall
    would appear automatically on the newsfeed pages of his friends’ Facebooks.
    The critical difference between a targeted email or inviting his workplace
    colleagues for a drink at the local pub for the purpose of enabling religious or
    political promotion outside work and S’s Facebook was that it was his colleagues’ choice, rather than his, to become his friends, and that it was the
    mere happenstance of their having become aware of him at work that led
    them to do so. He was in principle free to express his religious and political
    views on his Facebook, provided he acted lawfully, and it was for the recipients
    to choose whether or not to receive them.120
    S was failing to treat fellow employees with dignity and respect, including being
    non-judgmental in approach and that he was engaging in conduct which may
    make another person feel uncomfortable, embarrassed or upset, contrary to the
    Equal Opportunities Policy as well as contrary to the Code of Conduct
    The Judge reached the conclusion that with respect to this aspect of the Code
    and the Policy, S’s Facebook was also not sufficiently work-related. He stressed
    the importance of freedom of speech:
    The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply
    held contrary views, even where none is intended by the speaker. This is
    a necessary price to be paid for freedom of speech. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be
    to impose a fetter on the employee’s freedom of speech in circumstances
    beyond those to which a reasonable reader of the Code and Policy would
    think they applied.121
    The Judge accepted that Facebook could be used, for example, to pass judgment
    on the morality of a named work colleague, which would contravene this part
    118 Ibid. at para 76.
    119 Ibid. at para 77.
    120 Ibid. at para 78.
    121 Ibid. at para 82.
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    of the Code and the Policy.122 Prohibitions upon certain kinds of conduct might
    be of wider application to managers than to other employees. Nonetheless
    some objectivity needed to be applied to the analysis of S’s postings, even if a
    ‘real risk’ test was applied to the prohibition on causing upset. Statements
    about religion or politics may be more prone to misinterpretation than others,
    but it could not be considered a reasonable interpretation of those provisions
    that they should be taken to have been infringed if language which was
    non-judgmental, not disrespectful nor inherently upsetting nonetheless
    caused upset merely because it was misinterpreted.123 S’s postings about gay
    marriage in church were not, viewed objectively, judgmental, disrespectful or
    liable to cause upset or offence. As to their content, they were widely held
    views frequently to be heard on radio and television, or read in the newspapers. The question remained whether the manner or language in which S
    expressed his views about gay marriage in church could fairly or objectively
    be described as judgmental, disrespectful or liable to cause discomfort, embarrassment or upset. The Judge thought not. He was mainly responding to an enquiry as to his views, and doing so in moderate language.124 Miss S’s
    interpretation was understandable but not objectively reasonable. Nor was
    that of another employee who viewed the tone of the postings was offensive.
    S’s postings did not disclose homophobia.125
    (iii) The outcome for Smith
    In the result Judge Briggs held that the Trust did not have a right to demote S
    by reason of his Facebook postings and that the demotion imposed by way of
    purported disciplinary sanction constituted a breach of contract.126 The Trust
    immediately accepted the Court’s decision and made a full and sincere apology
    to S.127 It might reasonably be suggested that S’s comments were mildly formulated, diplomatically expressed and supported the existing state of the law.
    The Trusts’ response was an over-reaction that brought it no credit. Even the
    leading gay activist Peter Tatchell regarded the Trust’s approach as wrong.128
    122 Teggart v TeleTech UK Limited, supra n 98, could be considered as an example of this.
    123 Smith, supra n 106 at para 83.
    124 Ibid. at para 84.
    125 Ibid. at para 85. It was noted that S supported same-sex civil marriages by the state.
    126 S was awarded damages of just under »100. As noted, S did not bring unfair dismissal proceedings which would have seen him awarded substantial damages.
    127 ‘Trafford Housing Trust Court Judgement’, 16 November 2012, available at: http://www.traffordhousingtrust.co.uk/your-trust/news/trafford-housing-trust-court-judgement [last accessed 29 January 2013].
    128 ‘Tatchell Urges: Reinstate Adrian Smith. Offers to Testify in His Defence’, Peter Tatchell
    Foundation, 16 December 2011, available at: http://www.petertatchellfoundation.org/
    religion/tatchell-urges-reinstate-adrian-smith-offers-testify-his-defence [last accessed 29
    January 2013].
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    It had not credited gay organisations with having the ability to make the sensible judgments about organisations that Judge Briggs did.129
    (iv) Lessons from the Civil Jurisprudence
    Civil liability and disciplinary actions by employers are also on the rise as the
    cases examined demonstrate. The Smith case in particular merits close reading
    for its principled and sensible approach. It rightly gave considerable weight to
    the importance of freedom of speech. Employers need clear and effective SNS
    policies governing their use, their monitoring and the implications of not complying with the policy.130 Individuals need to keep their Facebook pages as a
    medium for social communication as distinct from work-related communications.131 Context, content, tone, manner and language (whether nonjudgmental, disrespectful nor inherently upsetting) are crucial and have to be
    assessed and interpreted objectively; a profile that includes details of where
    an individual works, which they commonly do, runs at least some degree of
    risk of association with an employer or other organisation. Repetition of
    ‘widely held views’, as long as they are not, for example, defamatory, racist or
    sexist, will not normally put an individual at risk of disciplinary action.
    However, given the weight accorded to the value of free speech, it is submitted
    that the repetition of less ‘widely held views’ should not significantly increase
    the risk. Even if an individual does not explicitly name their employer or
    organisation it may be implicit in the content of their Facebook pages. Posting
    communications that potentially bring your employer or organisation into disrepute or are inconsistent with its mission statement, or core values, can lead
    to disciplinary action and to dismissals that are subsequently be judged not to
    be unfair by the courts and tribunals.132 Senior employees need to be especially cautious but lower level employees need to exercise caution as well.
  4. Concluding Comments
    For many individuals the lessons drawn above from the UK’s criminal and civil
    jurisprudence will suggest the creation of a difficult and wholly artificial
    divide between their work and their social life.133 This is because their work is
    129 See supra n 114.
    130 See Glatt and Scallan, ‘Tips on Being Social Media Counsel’ (2012) 216 Managing Intellectual
    Property 30.
    131 Some SNSs are specifically designed to be work-related, for example, LinkedIn.
    132 An area that raises acute tensions is where whistleblowers who voice concerns about their
    employers on SNS networks are then subjected to misconduct inquiries, see Hamilton, ‘Met
    [Metropolitan Police] Silences Whistleblower Who Voiced Concerns That Reforms Will Harm
    Public’, The Times, 6 December 2012.
    133 The analogy might be with religious people who find a public or private divide
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    often central to their social life. Particularly for younger generations, SNSs
    such as Facebook and Myspace are irreplaceable.134 A lot of their lives are lived
    online and to be outside SNSs carries a price of social exclusion and
    non-identity. Notions of choice in this context are increasingly rhetorical. For
    some SNSs, such as Facebook, there are stronger elements of actual consent in
    terms of the acceptance of friends.135 But this breaks down as persons other
    than friends can access information indirectly. For other SNSs, such as
    Twitter, the consensual argument is much weaker. The sender has no control
    over who accesses the communications.
    It is a commonplace that the law necessarily struggles to keep up with speed
    with which technology develops. The rapid evolution of SNSs certainly demands imaginative and informed re-thinking about their legal regulation.136
    In legal terms communicating via SNSs is clearly not the equivalent of oral
    conversations with friends137 in a cafe, a bar or a public house.138 There is a
    permanent written record.139 There is also a potentially much wider audience,
    particularly given ability of search engines to give exponential and long-lasting
    publicity to a comment on an SNS and the use of automated programmes
    that ‘mine’ publicly available data on SNSs. Technology has changed the way
    individuals communicate and engage in public discourse.140 SNSs may represent the modern equivalent of what had previously been considered to occupy
    private, familial, close community or domestic spaces where the law tended
    not to go because it adopts a ‘give and take’ approach.141 Notwithstanding
    Facebooks’ terms of service that individuals have to use their real names, it is a
    fact that some users do not.142 The SNS persona, whether real or imagined, is
    part of the individual’s persona. Essentially the argument is that the ‘mass
    adoption of Facebook changes privacy, and thus how users understand and
    deal with privacy concerns’.143 For one of the inventors of Facebook there
    134 York, ‘Policing Content in the Quasi-Public Sphere’, 26 Open Net Initiative Bulletin, Harvard
    University, available at: http://opennet.net/policing-content-quasi-public-sphere [last accessed
    29 January 2013].
    135 As noted, this was an important element in the Smith Case, see text to supra n 120.
    136 See Mueller, supra n 32 at 185^214, on the regulation and censoring of Internet content.
    137 On Facebook the average user has one hundred and thirty friends on the site, see Facebook
    (2012) ‘Statistics’, available at: http://www.facebook.com/press/info.php?statistics [last accessed 29 January 2013].
    138 See Clift v Clarke [2011] EWHC 1164 (QB) (it was fanciful to suggest that a sensible and reasonable reader would understand two comments posted on a news website as being anything
    more than ‘pub talk’).
    139 See Boyd, ‘Social Network Sites as Networked Public Affordances, Dynamics, and
    Implications’, in Papacharissi (ed.), Networked Self: Identity, Community, and Culture on Social
    Networked Sites (New York: Routledge, 2010) 39.
    140 Businesses are also relying on SNSs to market their services and to develop relations with clients and customers.
    141 See Smith vADVFN Plc, supra n 72; Rowbottom, supra n 11 at 375^83; and Yalof Garfield,‘The
    Death of Slander’ (2011) 35 Columbia Journal of Law & the Arts 17.
    142 See Raynes-Goldie, supra n 21.
    143 Ibid.
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    needed to be recognition that privacy was no longer a ‘social norm’ and had
    evolved over time.144 In SNS spaces distinguishing between what is offensive
    and what is an acceptable, but shockingly expressed, argument is difficult.
    More generally, legal regulation of SNSs is challenging because it doesn’t fit
    with the paradigms on which laws relating to freedom of expression have
    been built. The line between individual and small group communications on
    one side and mass communication on the other is gradually fading. So too is
    the line between individual communications and those by organisations and
    institutions.145 It is not really credible to apply the high standards of journalism and broadcasting imposed by human rights law on mass communication
    organisation and institutions to individuals.146 The law will have to adapt.
    This will have to happen both in terms of substantive law and remedies that
    afford effective legal protection.147 An example with respect to the latter is the
    UK Defamation Bill 2012, which provides for increased protection to operators
    of websites that host user-generated content, providing they comply with a
    procedure to enable the complainant to resolve disputes directly with the
    author of the material concerned.148 Another idea in remedies terms might
    be that, instead of damages, a court or tribunal could order the same SNS account (for example, Facebook or Twitter) that carried the message or communication which contravenes the law to have to carry the appropriate apology or
    explanation in the same way that mass media sometimes provides apologies
    or clarifications to the same audience. Assuming it is technically possible,
    that could go some way to ensuring that whoever received the offending or defamatory message also received the follow up communication and did so from
    the individual responsible. This might well exert a degree of informal control
    in that the individual is revealed to their friends or followers as legally wrong.
    In some cases they will also be exposed as foolish and irresponsible. If SNSs
    are so ‘irreplaceable’149 in people’s lives this remedy will not discourage their
    continued use but might affect a practicable degree of civilisation and responsibility in controlling an ‘element of mob rule’.150
    144 Quoted in Barnett, ‘Facebook’s Mark Zuckenberg Says Privacy is No Longer a Social Norm’, The
    Telegraph, 11 January 2010.
    145 For example, some celebrities who work for organisations and institutions, such as BBC television or radio, have SNS accounts.
    146 See Rowbottom, supra n 11 at 370^5.
    147 See supra n 9.
    148 See http://services.parliament.uk/bills/2012-13/defamation.html [last accessed 25 February
    2013]. See also James, ‘Tightening the Net: Defamation Reform and ISPs’ (2012) 23
    Entertainment Law Review 197; and Joint Select Committee on Human Rights, Seventh
    Report, Defamation Bill, December 2012, available at: http://www.publications.parliament.
    uk/pa/jt201213/jtselect/jtrights/84/8402.htm [last accessed 25 February 2013].
    149 See supra n 123.
    150 See Lord Justice Leveson, ‘Privacy and the Internet’, Address given at the Communications
    Law Centre, University of Technology, Sydney, 7 December 2012, available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-leveson-speech-privacy-internet-071220
    12.pdf [last accessed 25 February 2013].
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