qLegal, Queen Mary University of London's free legal advice service for tech start-up companies and entrepreneurs, held a seminar on 22 September entitled 'Social Media: The Good, The Bad and the Ugly'. The seminar was held in conjunction with the 2014 Social Media Week, a leading media platform and worldwide conference that curates and shares the best ideas, innovations and insights into how social media and technology are changing business, society and culture around the world.
Anna Caruso, qLegal student adviser, was in attendance and has provided a recap of the seminar:
Tuesday, 22 September, Edwards Wildman hosted the seminar 'Social Media: the Good, the Bad, the Ugly', one of the many events organised by qLegal - in conjunction with its partners - for the Social Media Week. The event was fully booked and audience was highly engaged in the light of the topicality of the issues covered.
Patrick Cahill, qLegal coordinator, opened the session by briefly introducing the panel composed by Sarah Pearce (partner at Edwards Wildman specialised in Technology, Media and Telecommunications) outlining the 'good' of social media; Aksah Sachdeva (partner at Edwards Wildman and qualified barrister, having over 13 years of experience in intellectual property litigation) discussing the 'bad'; Sascha Grimm (associate at Edwards Wildman in the Commercial Litigation department) considering the 'ugly' side of social media.
Sarah Pearce began the discussion by providing an overview of the great opportunities that come with use of social media, focusing on the value of information and scale of access to customer data, which allows for greater product and service improvement. Particular relevance was also given to the so called 'humanisation of the brand', that is, interactive means of advertising which allow for customers' direct engagement with the brand. Hashtag activisim, crowdsourcing or crowdfunding are only some of the numerous examples made of innovative ways of using social media as a powerful business tool.
Pearce also briefly addressed the legal implications of gathering and analysing 'big data', where protection of intellectual property rights and privacy concerns are of particular relevance. For instance, businesses that process personal data must comply to the Data Protection Act 1998 (a harmonized EU data protection regulation is still not in force) and must ensure that a suitable privacy policy is in place. Terms & Conditions must be properly incorporated to make sure they are binding. Pearce's overall evaluation was elegantly summed up by quoting Oscar Wild: "There is only one thing in life worse than being talked about, and that is not being talked about."
The pitfalls briefly addressed by Pearce were picked and elaborated on by Sachdeva. The discussion evolved around the companies' responsibility for the content of their websites and around who owns user-generated content. For example, who owns a photo of a nudist rally in Trafalgar Square taken by an user and uploaded on Instagram? This, and similar issues, should be regulated by the Terms & Conditions of the website; unfortunately, almost nobody reads them. Privacy and defamation issues must also be considered. These are very pressing issues that the law, according to Sachdeva, has failed to adequately address. At present, existing law must be applied to new circumstance, which presents a challenge in itself.
While social media can be a very strong advertising and engagement tool, it can sometimes back-fire; businesses need to find the right balance in engaging with consumers. The example of "Ask JP Morgan" was made, where the company had to revoke the initiative due to the aggressive questions that were being posted and the overall negative impact on business's image.
In conclusion, Sachdeva argued that companies should be aware that social media can be a doubled edged sword, which needs to be carefully handled. All pitfalls must be taken into account at an early stage, in order to avoid drastic 'fails'.
Finally, social media can be used to carry out not only offensive but criminal acts. One of the positive aspects of social media is that it increases freedom of discussion and dissemination of information. However, due to the nature of the internet, it also creates perfect conditions for abuse. The use of social media is anonymous, quick and easy with a wide variety of opinions available, providing users with a sense of distance; these features inspire a sense of invincibility and can incentivize bad behaviours such as cyber-bullying, trolling, virtual mobbing, revenge-porn, threatening violence, offensive comments and the re-posting of any of the above.
These behaviours can be prosecuted if they satisfy the test in Code for Crown Prosecutors, according to which there must be:
1) sufficient evidence for realistic prospect of conviction
2) is prosecution required in the public interest.
Criminal legislation must be balanced with Article 10 ECHR incorporating the fundamental right of freedom of expression. Unfortunately, the balance is not always easy to find. Confirming Sachadeva's words, Grimm also points out that it is extremely hard to constantly update legislation; instead, most of the time current legislation must be adapted to new situations (with few exception’s such as revenge porn, for which the legislator has recognised the inadequacy of current provisions and is drafting a new proposal). Grimm carried on by providing a detailed case study of sentencing under the s127 Communication Act. Through the use of the case law, Grimm showed how judicial uncertainty around the issue is very problematic, highlighting for instance the absence of consistency and the excessive importance given to public outrage.
After effectively making a good case for and against specific use of social media, the panel welcomed questions from the audience. Following a most interesting Q&A session, guests were invited to further discuss matters around an aperitif.