by Joe O'Malley August-19-2013 in Media Law
Did you know that nearly 500 million tweets are sent every day? Twitter along with other forms of social media, whether to your liking or not has become a fundamental and ubiquitous feature of modern day society. Twitter provides a global platform to all its users to voice their thoughts and opinions, however valuable. Given the unfettered freedom of expression promoted by Twitter, these communications can be offensive and abusive. With so many users, it poses the question; who bears ultimate responsibility for the contents and consequences of such communications? If the responsibility is to fall on Twitter how can they control what their multi-million users are saying in their 500 million daily tweets? Whilst the ‘report abuse’ button now found on IPhones may seem like the answer to the abusive internet trolls, the real problem lies with the fact that with the stunning volume of tweets being sent every day it is impossible for Twitter or an Orwellian police force to respond appropriately to distressed users. Nevertheless, Twitter is now understandably facing demands from its users to do more to tackle the situation as social media users seek to assert their basic right to use Twitter and Facebook without being subjected to harassment and abuse.
The question of responsibility for abusive and offensive communications on Twitter and Facebook has been heightened in the last few weeks with the news in the United Kingdom that Caroline Criado-Perez, freelance journalist and feminist campaigner, had received rape and death threats to her Twitter account.
Ms. Criado-Perez, successfully campaigned for a woman’s face to appear on sterling bank notes. However when it was announced that the novelist Jane Austen’s face would appear on the new £10 note, Criado-Perez was bombarded with abusive threats, receiving roughly 50 violently misogynist tweets every hour. Even though a man was arrested over the threats, Twitter received heavy criticism for its failure to respond strongly enough. Calls emerged from users, MPs and celebrities to boycott Twitter. A petition was started culminating in 62,000 signatures aimed at forcing Twitter to take action against producers of abusive tweets. Labour MP, Stella Creasy who supported Criado-Perez in her campaign also received sexually explicit and violent tweets. After the increased pressure to react, Twitter did apologise to the women who were threatened. Twitter announced that the site had updated its rules to ensure that its users knew abuse would not be tolerated. Users were encouraged to use the report abuse button available on Twitter apps on IPhones. The report abuse button would also become available on other Android phones and on the desktop.
However one must question whether this report abuse button is enough given the sheer volume of daily tweets?
The social media sites, Facebook and Twitter refer to themselves as “enabling communications” rather than publishers, allowing them to avoid liability for the content. The fact of the matter is that social media giants such as Twitter and Facebook would have to practically re-define themselves in order to take more responsibility for the content of their users. Monitoring 500 million pieces of communication on a daily basis would be virtually impossible. Moreover, why would such a commercial enterprise voluntarily assume a greater role which carries this overwhelming burden.
Undoubtedly, this is an enormous area of modern society which needs reappraisal. Someone needs to take responsibility when these “internet trolls” are using the sites irresponsibly and in a way that would attract the full rigours of the law if they used traditional means of communication for their messages. However, huge resources and costs are clearly needed to remove all offensive content from the social media sites which has been reported and assessed. One sensible solution might be to hold the abusers themselves legally and financially liable through the imposition of fines and a scheme of naming and shaming them separate and apart from any other legal redress that the wronged party wishes to puruse.
Tory peer Lord McAlpine who was wrongly named in an abuse case, sued the individual tweeter instead of directing his target on Twitter. Cambridge Professor, Mary Beard named and shamed a tweeter for his abusive sexual tweets on Twitter. The tweeter was condemned on Twitter by fellow users and he immediately responded apologising. Beard offered to delete her own retweet if the tweeter removed his original message.
Each internet troll’s interaction on the internet can be traced back to an IP address. The IP address is assigned by your internet service provider who retains the information. In this country, the Gardai can obtain a court order to obtain the IP address. Internet trolls can also be traced through email addresses and location data.
Another suggested solution has been that the internet troll’s online abuse be directed straight to the Gardai rather than the social media giants. This approach would not detract from the fact that these social media giants have at the very least and pending legal reform, a moral duty to respond as expeditiously as possible to protect their users, not to mention a commercial interest in doing so. While it is instructive to note from a comparative perspective, that the laws in England and Wales make it an offence to send a message which is “grossly offensive” in nature, the reality was highlighted by the English DPP at the recent consultation of the Crown Prosecution Service when it was said that the courts would be overwhelmed if all cases involving grossly offensive messages through the internet were fully prosecuted.
Stella Creasy, after calling on Twitter to make a faster reponse to these internet trolls and their abusive comments, made the following statement; “Free speech is incredibly important on and offline, but it’s not free speech for someone to be threatened with rape. We have to have ways of dealing with that and we mustn’t misunderstand the level of cyberharrassment taking place in this country.”
The Criado- Perez case will hopefully make the social media giants take a closer look at what exactly is freedom of speech and differentiating it from hate speech. The public whilst being entitled to freedom of speech are also entitled to freedom from public humilation and abusive remarks. With more and more of these internet trolls emerging, social media giants need to think not only about freedom of speech but about its limits and equally important competing rights.
For further information, please contact Joe O’Malley on jomalley@hayes-solicitors.ie
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About the Author
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.