#YCASWYW (You Can’t Always Say What You Want)

Posted by July 26, 2013
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Photo courtesy of Jennifer Moo

There is no doubt that we are blessed in the UK with the right to the freedom of speech. Each and every one of us is entitled to our own opinions and we can, to a degree, express those opinions however we like.

This right is often exploited on social media, with the obvious example being Twitter. Many of you will have noticed that personal Twitter accounts of professionals will more often than not have a caveat “views are my own” as part of their account description. The purpose of such distinction is to allow the tweeter to retweet and tweet opinions of their own without the shackles of guidance from the professional body to which they belong or their employer.

Freedom of speech

Free from the restraints of their employer, an individual should therefore be able to tweet what they like, within the realms of what is decent and acceptable. Of course, many of you will be familiar with Sally Bercow’s libellous comment about Lord McAlpine (or perhaps you’re not, *innocent face*). So although it is obvious that inciting racial hatred or instilling fear in an individual via twitter is blatantly illegal, judgements such as those involving Ms Bercow show that your responsibilities as a user of social media go much deeper – and perhaps your right to free speech is curtailed further.

SAlly Bercow's libellous tweet


One of the key reasons libellous comments on Twitter (“twibel”, to use the typical media portmanteau handle) have become so prevalent is the way in which Twitter works. Tweets which trend or become popular effectively snowball (which, of course, can be a great feeling if you started it, or your business is benefiting from it or a terrible feeling if you are, negatively, the subject of a tweet) and each snowball lasts for as long as attention is paid to it. These waves of interest obviously vary from topic to topic, and change against a wide set of variables, from the obvious such as public interest to the minutiae, such as what’s on television.

This snowballing effect is one of the phenomena of social media and one which simply cannot be recreated in any other form – Twitter in real life would simply become a game of Chinese whispers. The conversions on Twitter are one of the growing examples of Big Data, and management of the same is proving a near impossible task. That means that you cannot easily compare libellous or slanderous actions in “old media” to that of “new”. Take Ms Bercows’ emoticon, for example. Standing on the street – even on speakers corner in Hyde Park, such a remark whilst technically potentially still actionable may have gone un-noticed, even taking into account Ms Bercow’s reputation and status as a *celebrity*, it would have died on the wind, been and gone in a second.

Where Twitter is concerned, however, the street corner or local pub is no longer the audience to your thoughts and opinions. Initially, there are all those who subscribed to receive your tweets when you tweet. This could be tens of thousands of people. If just one in ten then retweet from 3,000 followers, there will be 300 accounts which show your tweet on theirs as a retweet. Even allowing for each of those accounts to have 1,500 followers, if the same ratio as before re-tweet, you now have 450 instances of your tweet circulating on Twitter. And of course those who follow your followers will themselves have followers, and so on. This does not even include those who visit your tweet cold, either from a search engine, aggregate site or because the tweet, or hashtag you used, is trending.

Tweets spreading

No longer yesterday’s news?

Although comparison between old and new media is not always easy (or indeed clear), cases such as those involving twibel have shown that the current laws governing slander, libel and defamatory comments are easily applied to new media. In essence the law treats every individual tweet as a publication, and thus as the author of that work you are responsible for its contents, just as you would be if you were the editor of a newspaper. As a user of the service, you should also be aware of the likelihood that it will be viewed many times (as per the previously described snowball effect) by people who do not know whether what you are saying is true or not (unless it is patently absurd). It is also worth remembering that retweeting a defamatory tweet counts as a new publication and can land the retweeter in hot water.

Of course, there are many other pitfalls to using Twitter – such as the dangers of an ill-conceived hashtag (Susan Boyle’s PR team might well now be making an innocent face), and piggy backing trending topics can often result in negative publicity for businesses. The power of Twitter can also be seen across law; courts have even used Twitter as a means of serving notice of an injunction, and we are surely all aware that Twitter was the medium that broke the back of a number of super-injunctions. Twitter is also a hot topic of discussion with the Advertising Standards Agency (“ASA”), and we will be looking in more detail at the ASA’s approach to subliminal and sponsored advertising online in our next post. The post has focused on Twitter, but there are tens of other popular social media sites out there, all dealing with similar issues. In addition, new services like SnapchatInstagram’s video service and Twitter’s own Vine will no doubt ask further questions of how liberal one can be with their right to free speech.

The power of Twitter, as can be seen from above, is undeniable. It is a real-time script of the published thoughts and musings of individuals from all over the globe, informative, amusing, upsetting and revealing in equal measure. Twitter distinguishes itself on the rapid-fire nature of tweeting – trends can last for less than an hour, tweets get buried by thousands of new publications and yet, amongst all this vibrancy of prompt publication, users seem to forget the one key element to Twitter; when you tweet, you are laying your table of wares bare for the world to see. And they might take offence.

N.B Views and comments made in the above article are the authors own.

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