The behaviour of those using social media sites and online P2P file-sharing sites often gives the impression that they assume themselves to be ‘untouchable’ by law or regulation. So, sometimes, does the attitude evinced by the organisations that own or operate those sites. But recent developments in English law suggest, with increasing frequency, that those assumptions are misconceived. We shall selectively review some of these legal developments below.
In the past few months an impressive arsenal of statutes has been deployed in order to impose criminal sanctions on those who use social media for abusive purposes. For example, in February the Malicious Communications Act 1988 was used to give Peter Copeland a four-month suspended jail sentence for having tweeted racist comments about Newcastle United fans. In May the Crime and Disorder Act 1998 was used to jail Liam Stacey for two months for the racist remarks that he made on Twitter about Fabrice Muamba, a professional footballer. The Serious Crime Act 2007 has recently been used to jail (inter alios) Jordan Blackshaw for 4 years in August for having encouraged rioting by creating a Facebook event entitled ‘Smash d[o]wn in Northwich town’.
And section 127 of the Communication Act 2003 has received publicity in various recent cases. One of them related to Joshua Cryer, a law student who was sentenced in March to a two-year community order for having sent grossly offensive messages to Stan Collymore, a former footballer. Another related to Paul Chambers who, frustrated at the closure of Doncaster Robin Hood Airport, had tweeted in May 2010 “You’ve got a week and a bit to get your OBSCENITY together otherwise I’m blowing the airport sky high!“. He was convicted of the criminal offence of “sending, by means of a public electronic communications network, a message of a menacing character”, and his appeal against the conviction was dismissed in November 2011 by the Crown Court. However, in July of this year, to widespread relief (not least on the part of the various celebrities who had funded his defence), Mr Chambers’ conviction was overturned by the High Court1, who held that his tweet was not in fact menacing. The court took into account the fact that the security services had not responded to the message with any urgency, and that none of those who had followed Mr Chambers’ tweets had reported his message as a threat.
All too often those who post abuse on social media sites do so anonymously, and this obviously creates serious legal problems for their victims. One such victim, Payam Tamiz, was the subject last year of a series of libels posted anonymously on the blog London Muslim, which was operated by Google Inc from the blogging platform Blogger.com. Mr Tamiz succeeded in persuading Google Inc to remove the libels following his complaint, but the legal proceedings that he instituted in the English courts against Google Inc and Google UK Limited for defamation were less successful. The proceedings against the latter were held to be misconceived, on the grounds that Google UK Limited was responsible only for sales and marketing in the UK; and his action against the former failed before the High Court in March on the grounds that, although a ‘real and substantial’ tort had been committed within the jurisdiction, the role of Google Inc had been purely passive, and it was not therefore a publisher at common law2.
However, a strikingly different result was obtained more recently in the landmark case of Brookes v Facebook Inc3. Having received vicious and anonymous abuse on Facebook as a result of having posted a comment in support of an X-Factor contestant, Nicola Brookes failed to interest her local police force in the matter, and therefore instituted High Court proceedings against Facebook seeking a Norwich Pharmacal 4 order requiring disclosure of the abusers’ identities. Her application was successful, making this the first case in which a High Court disclosure order has been granted in the case of internet trolling. As a result, the true identity of one of the abusers – the pseudonymous ‘Cuthbert Bollingsworth-Smythe’ – was revealed, and an arrest has subsequently been made.
In the meantime it seems as if the war against anonymous social media users may be assisted by forthcoming legislation. Section 5 of the Defamation Bill (which will apply where an action for defamation is brought against a website operator in respect of a statement posted on that website) grants a statutory defence to the operator if it shows ‘that it was not the operator who posted the statement on the website’. But the defence is conditional, for it will be defeated if the claimant can show that the website operator fails to respond to a ‘notice of complaint’ served on it by the claimant seeking the identity of the maker of the statement. There are hopes that this section, if and when enacted, will provide to future victims of anonymous social media abuse a far easier and cheaper method of identifying the perpetrators than having to engage in chancy and expensive legal proceedings.
A much-regulated society
If the law has a very long arm, so does regulation, and we set out below examples of two fields of activity where, as shown by recent developments, compliance with regulations on social media behaviour is highly advisable.
Advertisers naturally find social media sites hugely attractive, but in promoting their wares on those sites they need to comply with the CAP Code, including the basic rule that ‘marketing communications must be obviously identifiable as such’. Two recent Advertising Standards Authority (ASA) adjudications, both involving ‘celebrity tweeting campaigns’, demonstrate the difficulties that can be encountered.
One adjudication5, in March, related to Mars Chocolate UK Limited, which had advertised its SNICKERS chocolate bars by reference to a series of celebrity tweets by Rio Ferdinand and Katie Price, only the final ones of which ‘revealed’ the celebrities with the product itself. In its decision the ASA declined to uphold complaints about the campaign which, in its opinion, made it sufficiently clear to consumers that the series of tweets were indeed marketing communications.
But, more recently, another ASA adjudication6 on a celebrity tweeting campaign – this time on the part of Nike (UK) Limited – produced a different result. In this case the ASA ruled that tweets sent from the official accounts of Wayne Rooney and Jack Wilshire did breach the CAP Code since, despite carrying the Nike URL in their texts and the name of the campaign in the hash tag, those references were not prominent and could be missed.
The legal profession
Nor is the legal profession immune from regulations on social media. For example, in December 2011 the Law Society issued a Practice Note giving detailed guidance on solicitors’ use of social media. The Note7 warned solicitors about the pitfalls awaiting them in using the social media: for example, tweeting that s/he is in a certain location at a certain time might reveal that the solicitor is working on a deal for a specific client, and thus breach client confidentiality.
Even judges are affected by social media diktats! Thus, in August a Guidance Note issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals prohibited judges who chose to blog from identifying themselves as members of the judiciary.
ONLINE PEER-TO-PEER FILE-SHARING
In contrast to most previous years, the year 2012 has so far seen a series of striking successes for IP rights-owners engaged in the battle against online P2P file-sharers under English law. We review some of them below.
As reported in various Wedlake Bell seminars, the Digital Economy Act 2010 enacted, for the first time, statutory obligations on internet service providers (ISPs) to take specified action in respect of their allegedly infringing subscribers. However, these obligations have not yet been implemented, not least because of a concerted legal challenge to those obligations by two of the country’s largest ISPs in the form of an application for judicial review. With the sole exception of liability for administrative costs in implementing those obligations, the application for that judicial review was rejected by the High Court last year, and the appellants’ appeal against that rejection was dismissed8 in March. The Digital Economy Act 2010 is therefore now back on the rails, and OFCOM (the quango in charge of implementing it) has recently reported that it is well on track, with the first notifications to allegedly infringing subscribers expected to be sent out in Spring 2014.
Recent months have seen a striking series of decisions by the English courts that have given great encouragement to copyright owners who are the victims of illegal online file-sharing. In February the High Court9 ruled that both the operators and the users of The Pirate Bay had infringed the copyright of record companies. In the following month, in a case involving the (pornographic) film industry, the High Court granted10 a Norwich Pharmacal order against O² requiring it to disclose the details of its P2P file-sharing customers. In May English legal history was made when injunctions were granted11 by the High Court against five UK ISPs requiring them to block access to The Pirate Bay, the for the first time that section 97A of the Copyright, Designs and Patents Act 1988 had been deployed.
And in June, as a result of a private prosecution by The Federation Against Copyright Theft (FACT) under the Criminal Justice Act 1987, the operator of surfthechannel.com (one of the world’s most-visited pirate websites) was convicted by the Newcastle Crown Court12 and sentenced to four years’ imprisonment. As well as putting behind bars one of the country’s most infamous copyright infringers, this conviction is believed to be a world record, in that it is the longest sentence yet awarded either in the UK or elsewhere to a copyright infringer.
There are already indications that the above (and other) developments are having an effect. In August UKNova – an allegedly infringing file-sharing site that had operated since 2003 – closed down after the receipt of a complaint from FACT. And in September Google announced an important change to its search algorithm, that will effectively ‘downgrade’ websites that persistently infringe copyright law by causing them to be displayed lower in the list of ‘natural’ search results.
The above developments tend to suggest that, from the point of English law at least, those who use or operate social media sites and file-sharing sites may well be less ‘untouchable’ than they thought. In the meantime, and as a reminder of how the long arm of the law can stretch into cyberspace, approval was given earlier this year by the High Court for the service of the claim form on a defendant by Facebook, believed to be the first time (but not, assuredly, the last) that a decision has been made at High Court level regarding service of proceedings via Facebook.
The frequent comment that “the law lags behind technology” is only partly correct. The law is certainly as not up-to-date as the latest social media or file-sharing site, but it can and does apply to the users of those sites, as demonstrated above; and those users who ignore the law do so increasingly at their peril.
1 Chambers v Director of Public Prosecutions  EWHC 2157(QB)
2 Tamiz v Google Inc et al  EWHC 449 (QB).
3 June 2012, unreported.
4 Norwich Pharmacal Co et al v Customs & Excise Commissioners  AC 133.
5 7 March 2012, reference A12-185389.
6 20 June 2012, reference A12-183247.
7 Law Society, Practice Note, Social Media, 20 December 2011.
8 R (British Telecommunications Plc) v BPI Limited et al  EWCA Civ 232.