We are all publishers today. But if you have a Twitter or Facebook account, or just a blog, then are you all in the same legal position as the Editor of The Times when it comes to the draconian laws on libel?
“There is no distinction in the law between Fleet Street publishers and online bloggers,” says David Banks, one of the UK’s most prolific journalists on media law.
“Over the last 15 years there has been a huge change in the way we communicate. Organisations were used to deliver top-down messages. The media itself used to have much more control of the messages sent to its audiences. That model has been shattered.”
Indeed, increased web communications coupled with the dialogue allowed by social media has give rise to a new era. “As a company, you no longer are speaking with one voice necessarily all the time. There will be multiple voices coming out from your organisation; voices that haven’t been originated by yourself but by the people who you employ and work for you. And, some of those messages may create potential legal liability.”
This is true at least in the UK. Many social media platforms have been developed in the U.S., well seated with the Freedom of Speech. They have spread worldwide but from a regulation viewpoint according to Banks: “here in Great Britain and Europe there is a lot more law that we can break on a daily basis.”
Banks points out to libel, privacy, data protection and copyright. Last but not least is reputation: “even if you don’t break the law you can still end up with reputational damage to you as an organisation as well as an individual.”
The ‘horror stories’
With a feeling of curiosity mixed to anxiety, I asked Banks to share some of the ‘horror stories.’ In a very gentle and relaxed manner he replies: “those things happen all the time.”
And mistakes happen. Last year during the local elections a group of voters created the hashtag #whyIamvotingUKIP to discuss the reasons why they were supporting UKIP. As often occurs on social media, the hashtag was quickly taken over by another group of people who intentionally did not vote for UKIP, posting their own reasons. When a BBC news producer saw a couple of those tweets, she decided to re-tweet them. “She did not tweet any of them. She just re-tweeted them. But that was enough for UKIP to complain: ‘She works at the BBC News; she is meant to be impartial.'”
The BBC producer re-tweeted from her personal Twitter account, which stated ‘My views are not those of the BBC’. All the BBC employees seem to have that line. Yet, it means nothing warns Banks: “There is nothing on the employment law that covers that. If you do something on your social media account, which is a disciplinary matter, then that line doesn’t protect you as an employee.”
And, it did not protect the organisation either from reputational damage. On that occasion the BBC had to act on the UKIP complaint and it damaged this woman’s career as a result.
Remember to sign off
Another example of when things can go wrong on social media comes from a local authority. “They had a really good idea to use social media to get people out on polling day. Several members of staff started to use the Twitter account of the council giving relevant information to voters such as advice on how to avoid queues from the different polling stations. They were able to engage with many younger voters. It was a very good and democratic idea.”
But what they forgot to do was to sign off at the end of the day. “A member of the staff went home in the evening with his phone still signed into the local authority Twitter account. While watching Michael Gove on TV, a figure who divides opinions in the country, he started to tweet his own thoughts, which were not complimentary to Gove. So, now it looked like a Conservative council was attacking the Conservative education secretary.”
Is there still a place for a private versus public debate on social media? Banks doesn’t believe so. Or at least, it depends on how many followers someone has. “If you have a very small amount of followers, maybe. But, when you just have 100 or 200 people following you, that is enough to say that your content is public.”
Banks keeps seeing libel threats around privacy. He shares the story of a woman working for a council in Essex. She was involved in an incredibly difficult case where a child was removed from a family where alleged abuse was going on. The woman helped win the case and on judgement day she posted on her Facebook account what a relief it was to achieve that result. “This was a thought that you would normally share with your colleagues over a coffee or a drink after the case. But she shared it on Facebook. Ultimately, her contract was not renewed because she had given enough details to identify the family involved.”
Is the law catching up?
Obviously rules are necessary for our society. Yet, many of them were created ages ago sometimes even back in the 19th Century. Are regulators waking up to the fact that the world has changed? “Yes, they are. But legislation is very slow to catch up.”
In fact, when social media first came out the court started taking it into consideration. For example, it began doing something to acknowledge that internet publications are different for print. Equally important, “today, if you want to sue someone for a libel you have to show not only that your reputation was harmed, but also that there was serious harm to your reputation, which raises the bar.
“If a person with a small number of followers tweets out something that takes the mickey out of someone, the court would probably say that this has not done any serious harm. It has not got anywhere.”
However, we have to remember the capacity of a tweet to go viral even from a person with a tiny number of followers. “You are not always safe just because you have a few accounts following you.”
That is actually the strength of social media – if someone with a large number of followers spots an individual with a few followers, then all of a sudden a message can reach thousands of people. “You must be very boring if you want to be kept silent!”
Humour is still welcome
Is there any latitude in law for humour? “Yes, what is called ‘Honest Opinion’ covers satire and parody.”
Indeed, it is not carte blanche as many magazines are regularly sued for liable. But, genuine humour is protected. Banks shares another interesting story of Elton John suing the Guardian at the time when the publisher was running the series A Day in the Diary of.
“For the Diary of Elton John the article was making jokes that in all the fundraisers that the singer was doing he didn’t actually raise any money, but that he just did it because he liked dressing up.”
But when Elton went to the court suing the Guardian for the libel, he was told that it was clearly a joke – “none could have read the piece and thought that it was by the singer.”
Behind the firewall
Talking about social media inside the enterprise, if what is said is behind the firewall of your organisation, are you completely safe? Let’s say for example that you are posting something criticising your competitors, which may not be true.
“No. You are not safe.” Banks explains that in libel, all that a claimant has to show is defamatory meaning – which means the reputational damage has to be very serious, identification and publication to a third party. “If it is corporate, it has to have severe financial consequences. It has to show that initially it was published to third parties. That party doesn’t have to be external. In fact, it can be within your organisation.”
So, if someone leaks that information or becomes aware from those third parties, then they can certainly sue the company where the post was published. This applies to words and pictures as well. Actually, “photos are a rich source of libel. There are plenty of examples of images taken out of context.”
Back to social media guidelines
As much as we may like the prestigious British courts we may certainly prefer to stay away from them. So, what advice would Banks give us? How can we fully enjoy social media without breaking the rules?
“People need social media guidelines that can be easily understood.”
Indeed, as soon as the medium was originally introduced many companies started introducing policies. “Usually they asked lawyers to write those documents.”
The intention was great. Unfortunately, none could understand those papers (except for the lawyers of course).
Banks suggests putting something in place that is comprehensible, speaks the language of the people and the organisation. “Guidelines that just remind individuals the basics. You can’t expect your staff to read and grasp the message behind Acts of Law.”
He also encourages organisations doing some training, which clarifies what behaviour is and is not acceptable on social channels. “It would protect you as an employer as well as your employees, who may want to be ambassadors and go out genuinely to talk about you.”
This can be very helpful. “There can be unpleasant activity on social media such as trolling. Knowing what to do when that happens can hugely help your people to protect themselves.”
But sometimes is just about “using common sense.” A friend of Banks likes to joke that “people tweet like they are driving” – referring to the psychological dis-inhibition that can surface on social media.
We may want to learn from the BBC, where social media guidelines start with a very sensible number one: ‘Don’t do anything daft!’
Indeed, it is about reminding people that the common rules of courtesy and good manner apply to the online world as well as to the physical world.