September 2015

Saying the right thing    

                                                                                          Dr Joe Stevens
There have been many high profile cases recently involving the use (misuse?) of social media. From nursery teachers in the USA to local politicians in the UK. Many have found themselves on the wrong side of the law. So what is the law on the use of social media? Is it fit for purpose in the 21st century or is it the users of these modes of mass communication who aren’t aware and who need education in order to take more responsibility and ownership for what they say on the internet? 

In his excellent article, ‘The social media paradox: an intersection with freedom of expression and the criminal law’, Peter Coe (2015) outlines many of the issues involving social media such as Facebook, Twitter and Instagram. The discussion ranges from general human rights elements to current law in the UK, and includes all the legal pitfalls.

The issue of what people say, and who hears them, has not only effected the good and great, but has also found its way into student life. Many students (and staff) may have gripes about lecturers, students or the institution itself. These may range from genuine complaints to malicious gossip or slander. The National Union of Students produced its own social media guide for staff, including examples of policies for use at work link here and many Universities have student guides available ,because saying the wrong thing could lead you to contravene your student discipline code.

This of course applies to staff as well. Saying something on Facebook or Twitter is not always the same as having a private chat in your house, or even a lively discussion in the pub with your friends. If your privacy settings aren’t correct, it is more akin to putting conversation out on a billboard or poster in the street, with everyone able to see what you said anytime they look up!

The American-based CareerBuilder estimates that 51% of employers check the social media profiles of prospective employees, up from 31% the previous year. Many UK employers also search on Google (including the National Union of Students), justifying this as ‘the need for due diligence’ when looking for potential candidates. This can of course lead to unfair discrimination that is difficult, if not impossible, to detect and deal with. For example, that little incident with the traffic bollards and the police when you were 17,  the one that made the local paper and resulted in you receiving a police caution, could now be there for your employer to find, forever. How fair is that? Link here.

The Rehabilitation of Offenders Act (recently amended by the Legal Aid and Sentencing of Prisoner Act 2012) sets out clear limits on when convictions are spent and when they have to be declared. Nonetheless, if employers can ‘short-circuit’ this system there seem little chance of changes to the law being effective. Link here. Google itself recently lost the ‘right to be forgotten’ case which found that out-of-date and non-relevant material could be removed from Google searches. The question is, who decides what is relevant and may be removed? For the present, it is Google themselves! Link here.

How we communicate with each other has changed out of all recognition over the last few years, and the law has struggled to keep up and perhaps so have individuals responsible for posting in this media in the first place. The law however, is not the only answer to this 21st-century problem; people need to keep informed about their rights and perhaps more importantly, their responsibilities with regard to exactly what their ‘free speech’ means with regard to the rights of others. Do read the short article about your rights and responsibilities in relation to ‘free speech’ and the use of social media by Liberty (a human rights NGO). Link here. You might be a bit surprised. Whatever you do, bear in mind the next time you post that photo or status update it could come back to haunt you in the years to come! 

Dr Joe Stevens
Senior Lecturer in Law
LLM Course Leader

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