Libel And The Social Media Is A Corporate Issue

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On the Internet, everybody can hear you scream – or belch or break wind – because nothing is erased, not even libelous comments, says Eric Doyle

Speakers’ Corner, on the edge of Hyde Park in London, is a platform for free speech, and expensive hot dogs and ice creams. Like social media sites, it offers the ability to speak your mind whenever you want about any subject you want as a human right – as long as it doesn’t break the law.

The difference is that there are always London bobbies on duty at Speakers’ Corner just in case there is a disturbance of the peace. They also act swiftly if there is a complaint about one of the orators but, generally speaking, they are content to let some quite extreme views be aired, so long as there is no hint of starting race riots and an absence of profanities.

Written in stone

This is where social media differs from Speakers’ Corner. A blog, tweet or comment is posted in a moment and, even if the mediawaves were policed, it would be impossible to stop extremist views in their tracks before offence was caused.

Last week in the English High Court, a student lawyer and former Conservative local government candidate brought an action against Google for allowing a blog to brand him as a drug peddler and thief. The judge threw the case out, effectively, because he considered that Google was responsible for providing the means to publish and could not be held responsible for the content.

The judge likened Google’s Blogger site to a wall of graffiti, implying that, even if the owner of the wall provided a spray can and an open invite to graffiti artists to do what they liked, the owner could not be held responsible for what ten appeared on the wall – providing they erased offending content in a timely manner.

Because the content of the blog was libelous, Google removed the anonymous account but has not given the police any leads as to who the blogger(s) may have been. The unfortunate student was stung with Google’s costs which, given his limited means, implies there will not be an appeal.

The irony of the case is that a couple of years ago on Facebook, the same student berated local girls as being slags – unfortunately the “slags” lived in the Margate area – where he later became, for a short period, a prospective councillor until his youthful outburst hit the local headlines.

This has an inference for company security. Employees will more than likely have social media accounts and, probably, some sort of legacy of outbursts. Similarly, job applicants will also be in a similar position. In a recent move by Twitter, the archive of tweets has been opened to third-party analysts armed with Big Data tools.

Initially, these are limited to finding information to create brand profiles for companies, and a likely lucrative venture for Twitter but it may not stop there. Twitter is also donating its archive to the US Library of Congress where, and this is conjecture, it could be opened to searches one day.

In the shareholders interest

If this proves profitable enough for Twitter, there is a distinct possibility that Facebook and other “free to the user” services will follow, especially as Facebook will soon have investors breathing down its neck asking for an annual increase in its profits to give them a return on their investments. The net effect will be that every employee will have to be watched like a hawk and every prospective employee will be Big Data searched – whether it is legally acceptable or not.

It’s no wonder that Gartner has just predicted that 30 percent of large organisations will block social media by 2014. It’s bad enough that malcontents may denigrate their employers during their free time, let alone allowing them to do it during work hours.

We are entering a strange world where nothing dies. The wind no longer carries voices off into the night. At least the EC seems to be shaping laws to govern the social media barons. No file should be kept for more than a year unless the owner asks for it to be kept – and then should have the right to select what is, and what is not, stored.

Timeline is the most odious thing to emanate from Facebook. It has been forced upon its users with no consultation and lays bare the history of millions of people – and now companies. No retractions, no forgotten demeanour, no unrecalled slur.

It will be interesting to note how a case of libel pitched against Twitter fares in Australia. If the defence has their wits about them they will cite last week’s High Court judgement in London but the legal position is already clear. Under the country’s defamation laws, internet service providers (ISPs) and content hosts are considered to be liable for any material published by a third party.

The legal profession will watch closely to see what transpires. It’s an Aussie stand-off. Who will blink first?

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