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Law Guides: Privacy, Social Media and the Law

Social media and the law: how are they related?

It is undeniable that we live in a social media age. You need only look around the train carriage on the tube to realise how attached we are to our phones and computers. Now not only do we take them everywhere, we use them to share everything.

Privacy is seen as a fundamental right, protected under article 8 of the European Convention on Human Rights and article 7 of the Charter of Fundamental Rights. However, in the internet age, the right to privacy is becoming increasingly difficult to protect and the biggest question is how to balance the right to privacy with the need to keep people safe. This edition of the Law Guide series will explore how privacy, social media and the law are related.

Social Media and the Law: Broad accessibility

In privacy law there is a right to be forgotten, however this right is becoming increasingly difficult to assert in the age of social media.

Rights such as freedom of speech and freedom of the press commonly override privacy rights. However, not only are privacy rights difficult to assert in court, they are also difficult to enforce on the internet. Even once a judgement has been granted, any injunction may be redundant if it only applies in one or a handful of countries.  

A good example of the complex relationship between social media and the law is the series of injunctions against footballers granted by the UK courts in 2011. While the footballers’ names could not be published in the UK, no such restrictions applied in other EU countries. Given the wide availability of international publications online, the privacy injunction was effectively useless when it came to protecting privacy. UK users could easily access websites of German or Spanish publications to read the full story with all the details.

Social Media and the Law: Outdated privacy laws

Some have argued that current UK privacy laws are outdated in light of the internet age.

Most recently, Katie Hopkins has been denied the right to appeal a libel judgement against her as the judge felt she would have ‘no real prospect of success’. Ms Hopkins tried to argue on a radio show that there is now a ‘new world of defamation law’ in light of social media which means that certain standards previously applied in libel cases should be adjusted.

While it is true that the law needs to adapt with the times, it is difficult to see how giving lower protection for privacy wherever the internet is involved can be justified. Recent data protection legislation from the European Union has actually strengthened the privacy right by placing limits on what information websites can collect and store. In addition, EU legislation has sought to give individuals rights to ask for certain information to be removed, thus strengthening the right to be forgotten.

Social Media and the Law: Policing the internet

The issues of libel and defamation begin to seem very small when compared with the threat of terrorism. The internet is now the fastest way to spread extremist messages of all kinds and many are struggling to think of the best way to protect against this.

The popular argument is that people should have no problem giving up personal data in the name of national security if they have nothing to hide. However, taking this to the extreme would render privacy laws redundant.

Most recently, the US government has been at the centre of the security vs privacy debate. The US VISA Act 2017 requires that background checks on US visa applications include a review of an individual’s publicly available internet material, including social media.

Although President Obama proposed a similar measure, it was comparatively more limited and emphasised that individuals would volunteer information rather than be required to provide it. Under the 2017 Act, applicants have to provide any additional information required “in complete form”. Many have suggested that this would include social media passwords. While it is intended that a warrant will need to be obtained before phones and laptops can be searched, legislation on this point has yet to be introduced.

Critics such as lawyer April Doss have questioned the legality of requiring applicants to give up password information, as well as whether such an intrusion into privacy can be justified when most of the vast volumes of information will be irrelevant.

In light of this, the balance between policing the internet to keep it safe and introducing dystopian-style surveillance where everyone is watched at all times seems incredibly fine. Most seem to agree that privacy needs to be protected in some way and interests of security should not be overly prioritised. Ultimately, the relationship between social media and the law is complex; the debate on how privacy and security can practically be achieved is ongoing and will likely continue for a long time to come.

Words: Mariya Rankin

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