Recent sentences handed down by courts in the UK have prompted debate over the issue of legal responsibility and accountability for users of social networking sites such as Twitter and Facebook among others.
As more people and members of the media turn to social networking platforms to divulge information and express opinions, questions over what is morally acceptable versus what is criminally punishable have been raised once more.
Last week, a British man was sentenced to 12 weeks in prison after posting offensive comments online about the missing youngsters April Jones and Madeline McCann.
However, the sentence passed down to Matthew Woods, 20 has been criticised by commentators, who argue that it was too harsh and disproportionate to the offence committed.
A day after the judgement, Azhar Ahmed, another 20-year-old, was fined £300 and forced to do 240 hours of community service after posting an offensive message on Facebook following the deaths of six British soldiers.
Both defendants were prosecuted under the Communications Act of 2003, which says that “grossly offensive or of an indecent, obscene or menacing character" are punishable under section 127.
The cases have caused concern among journalists, media outlets and social network users who are unsure as to the exact boundaries related to legal accountability and responsibility for online publications.
In the UK, where questions over press freedom and the freedom of expression have been in the public eye over the past year, these sorts of issues, related to the legality of online expression, are becoming a more common occurrence.
To attempt to prevent the problem getting out of hand, police authorities have been in consultation with the government with a view to introducing measures to ensure consistent interpretation of the law.
Director of public prosecutions, Kier Starmer QC who is aiming to publish a draft set of guidelines next month, said: "In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media."
He described social media as “a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors, but also by others including the police, the courts and service providers.”
The case of Paul Chambers, whose conviction was overturned in July of this year after he was initially found guilty of sending a “menacing electronic communication,” provides another example of how comments posted online can very quickly get out of hand. After writing that he would blow up an airport after it had been closed due to bad weather, Chambers became embroiled in what became known as the “Twitter jokes trial” on account of the alleged misinterpretation of “a silly joke.”
David Allen Green was Chambers’ solicitor for that case, and he argued that "the police and the criminal justice system more widely still do not understand enough about social media, and because of this, resources are being wasted and bad decisions being made."
However, issues related to online media and legality reach much further afield than the UK, and journalists, bloggers and activists around the world have already been involved in numerous cases related to online accountability.
As they attempt to get to grips with this new form of publishing information and opinion, legal quandaries related to Twitter, Facebook and other online realms continue to pose problems for governments across the globe.
Although the cases which have recently occurred in the UK are related to the posting of very specific messages which few would deem anything other than morally reprehensible, the problems to which they point affect the wider media, journalism and freedom of expression in general.
Governments have traditionally employed a variety of methods to control the media and silence dissenting voices. While journalists have routinely been thrown into jail, threatened and faced violence for carrying out their work, the need for a wider net to be cast by controlling authorities has emerged with the prominence of online media.
Now anyone has the potential to report a story, and citizen journalism is on the rise, whether helping to convey information from war-torn countries such as Syria or managing to avoid self-censorship and other restrictions which face traditional media outlets in Gulf countries and elsewhere.
Of course this has and will continue to lead to legal questions being raised. What is offensive? What is so offensive that writing it should be deemed criminal? Who is accountable for what is published in public forums? Who should be empowered with making these decisions?
The Doha Centre for Media Freedom has reported on a number of cases in recent months which highlight how thorny an issue online posting, reporting and commenting has become.
For instance, a press law initially introduced in the Philippines, but recently suspended by the country’s Supreme Court for four months of consideration after encountering huge opposition, would have meant that people posting online could have faced up to 12 years in prison for writing defamatory comments on Facebook or Twitter.
While in Thailand, 44-year-old website manager, Chiranuch Premchaiporn was handed an eight month suspended jail sentence after comments posted on her website Prachatai, a popular forum for discussing Thai politics and culture, were deemed insulting to the country’s royal family. The case sent shockwaves through the internet community as it placed the burden of responsibility for online comments on the shoulders of the site’s manager, as opposed to the author of the offensive messages.
In August, 2012, Hamas ordered internet service providers in Palestine to block sexually explicit websites, and imposed fines on those that failed to do so. Yet web-users in Gaza are asked why they wish to access certain (non-pornographic) sites by the Ministry for Information Technology and Telecommunications, causing many to feel that their freedoms are being compromised.
Earlier this year, the Indian government demanded that social networking sites remove comments it deemed harmful and provocative, providing another indication of both the authorities’ recognition that social media plays an increasingly important role in modern society as well as their unpreparedness for dealing with these issues.
The Pakistani government also made the move to ban twitter over an online competition related to depictions of the Prophet Mohammed, a matter of hours after assurances were given that no such steps would be taken. However, after a strong backlash and condemnation of the move from home and abroad, the decision was repealed within a matter of hours, clear evidence of yet another government’s difficulties in attempting to control the flow of information online.
And last year, the government of Cameroon requested that telephone providers in the country suspended access to Twitter on the basis of national security.
Over the past few months, YouTube has been at the centre of freedom of expression debates around the world after a video entitled “Innocence of Muslims” sparked violent demonstrations by Muslims across the globe.
Web-users in China have consistently had to deal with internet censorship and limits to freedom of expression on social media, and DCMF has recently published a special report on the situation for the media in Tunisia, highlighting the impact of social media there, but also the difficult relationship between the government and advocates of freedom of expression.
All of these cases include a level of subjectivity and judgement at some point, defining the material involved as “grossly offensive” or “incitement to violence,” while also involving interpretation of what are generally outdated laws to deal with these cases.
The problem for journalists and bloggers is that the platforms that once enabled them to make use of legal loopholes and publish stories and information that would otherwise have been restricted, have now well and truly registered on the authorities’ radars, meaning that they are now no longer a safe option.
Difficulties for freedom of expression
The benefits of social networking and online media have been widely reported in recent months, and Twitter, Facebook, YouTube and other sites have been credited with playing major roles in revolutions resulting in historical changes throughout the Arab World. No previous generation has enjoyed such easy access to such a vast array of information and advances in technology mean that this unparalleled access will only continue to develop.
However, the proliferation of social media, the incredible emergence of what has become for many a way of life, brings with it a worryingly large number of difficulties, none more so than in the realm of freedom of expression.
Governments face the unenviable task of attempting to maintain consistency in interpretation and the administration of justice, while keeping open to a level of flexibility which is necessary when dealing with a landscape which continues to change at a remarkable rate.
Sources: DCMF, BBC