The rights to privacy (including reputation) and freedom of expression are part of several domestic laws and international treaties. One or both are contained in at least the following: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights (ACHPR), and the American Convention on Human Rights (ACHR). Despite their prevalence, however, there exists a tension which affects the protection of these rights on social media. Several law firms in the United Kingdom have reported a rise of 70 percent in defamation claims, many involving social media platforms. Twitter, in particular, received a 42 percent increase in online reports in 2019. Combined with a surge in reported cyber-mobbing in schools and concerns about misinformation, there exist strong indicators that social media sites do not currently incorporate adequate protections for users.
The right to reputation is included in the European Convention of Human Rights and is linked to our right to privacy, as observed recently by the European Court of Human Rights,
“the right to protection of one's reputation is of course one of the rights guaranteed by Article 8 of the Convention, as one element of the right to respect for private life’’.
Member states of the ECHR have a positive obligation to protect associated rights. In the UK, the Human Rights Act 1998, an Act of Parliament enforceable by courts and tribunals, incorporates the rights enshrined in the ECHR into domestic law. As such, the right to privacy is protected under Article 8 while freedom of expression is outlined in Article 10. There is no specific law in the UK which refers solely to social media, which is instead protected by various legislation such as the Malicious Communications Act 1988, the Communications Act 2003, and the Defamation Act 2013. The rights outlined in the HRA can also be applied to the context of social media.
Founded less than 15 years ago in 2006, Twitter is considered one of the most popular social media platforms. About 255 million people around the globe, and 14 million in the UK alone, regularly use Twitter, posting 500 million "tweets" each day. Freedom of expression extends to various mediums, including social media channels. It is therefore illegal for any state authority to moderate content on a social media site unless that content is illegal. The same applies to social media platform owners, such as Twitter. However, for Article 8 and Article 10 to work together, both rules and guidelines must be enforced. An article by Stijn Smet in the Strasbourg Observers notes that the rights of expression and reputation are “natural enemies”. This begs the question: how can they work together?
Until recently, Article 10 seemed to be given precedence over Article 8 in court proceedings, as seen in the examples of Douglas v Hello! Ltd (2001), Theakston v MGN (2003), and A v B plc (2003). But, as the HRA has grappled with the relationship between both Articles, recent cases have demonstrated a clear shift so the two now carry equal weight. In a recent case by the European Court of Human Rights, Judge Loukis Loucaides observed,
“When there is a conflict between two rights under the Convention, neither of them can neutralise the other through the adoption of any absolute approach. Both must be implemented and survive in harmony through the necessary compromises”.
Everyone has the right to freedom of expression with social media constituting the perfect place to air personal views. But does Twitter have boundaries to ensure it is a safe space to exercise this freedom? And what happens when one individual's social media content crosses these limits and starts to infringe on another's right? Guidance text by Aston Bond Law Firm states,
“…your rights are fairly obvious. You have the right to feel safe and not threatened and you have the right of freedom of speech unless it may cause distress and/or anxiety to somebody”.
Article 19, a non-governmental organisation protecting freedom of expression, has produced a comprehensive document detailing the limitations of the right to freedom of expression. They argue that the right does not extend to commentary that would damage the reputation of individuals, expose them to ridicule, or cause them to be avoided. This is supported by a list of restrictions from the Equality and Human Rights Commission, one of the UK’s National Human Rights Institutions (NHRI), which states that freedom to expression must respect others’ rights at the same time.
The exercise of these freedoms, according to the HRA, carries with it duties and responsibilities and can therefore also be subject to restrictions. It makes sense to suggest that hosting platforms, such as Twitter, have a duty to restrict or moderate content that violates other rights, as a positive obligation to create a safe online space. How this is done in a democratic society, of course, needs to be carefully considered.
To offer some form of content regulation Twitter has "Terms of Service" and "Rules and Policies". However, the limited effectiveness of these rules and policies is demonstrated by the actions taken in response to reports of violations of the terms of service.
Twitter’s Transparency Report lists that between 2018 and 2019:
Over one million accounts were actioned for breaching Twitter Rules
Twitter received approximately 67 percent more legal demands, impacting roughly 86 percent more accounts, compared to its previous reporting period. This was the highest number of global legal demands to remove content received since 2012 when the first statistics were compiled
Twitter received legal demands pertaining to 50,757 accounts and, after review, content was removed from 16,893 accounts
Seven Twitter Rules categories were identified: abuse, hateful conduct, sensitive media, private information, violent threats, and child sexual exploitation
What becomes apparent is that online safety for Twitter is categorised into areas that, although valid, are not entirely compatible with general laws and human rights laws. For example, a defamatory tweet, which would be considered illegal in the UK under the Defamation Act 2013, would instead be reported as harassment or abuse, of which it is technically neither. As a consequence, the response is not adequate.
A tweet that is reported for harassment on Twitter receives a standard reply suggesting that the harasser is “blocked”. While a tweet reported for abuse will be looked into, this may produce the same outcome with a suggestion to block the writer of the abusive tweet. If one's right to privacy is violated through a false accusation by a user and a defamatory tweet ruins an individual’s career (see the recent case of Jon Tennant), it appears the options available to a user remain the same: report and block an account. The removal of a tweet is dependent on an individual having enough funds to administer a legal application for removal outside of Twitter. Although Twitter acknowledges there are laws users must abide by, it does not enforce appropriate reporting in accordance with these policies. This indicates that Twitter is not regulated in the same way as other communication channels, such as the general press, and is therefore potentially void of some of the safeguards needed to maintain user safety.
It is apparent that while Twitter removes accounts that violate some laws, it seems to prefer the freedom of expression over other rights. This undermines the court’s stance that all rights are equal. Furthermore, human rights violations are categorised into areas such as “abusive behaviour”, “violent threats”, and “impersonation” and there is no detail on other activity that would be a violation of Article 8 of the HRA. Twitter offers some vague advice to users to "comply with all applicable laws and regulations" and fails to elaborate on its policies. This statement might seem to imply that your average user would be aware of the Defamation Act 2013, for example, which is not the case.
The ‘’Twitter Rules and Policies’’ have a section titled “Defending the Rights of People using our Service” which acknowledges both the right to privacy and the right to freedom of expression and references the United States Bill of Rights and the ECHR. However, the text in this section does an injustice to both rights. It is brief, reducing the right to privacy to user account information and the right to freedom of expression to advice on content removal. The right to privacy is substantially more significant than just the data held on a user and the right to freedom of expression is broader than seeking court orders to remove content. Additionally, certain reports can only be filed against minority or protected categories under “hateful conduct” reporting.
What is clear from exploring the consequences of reporting on Twitter is that the content of a tweet is not handled in light of its potential breach of human rights or other laws. The user agreement and terms and conditions on Twitter do not seem to adequately protect users from such violations. A recent article by Veronique De Herde, an advocate against online mobbing and bullying, discusses the severity around such issues, providing a strong case for an increased look at safeguards and Twitter regulations to create a space that is safe for all users.
It is important to consider that when social media platforms do not respond adequately to human rights violations, they are indirectly supporting such behaviour. Indeed,
“people’s rights can be undermined indirectly by creating a culture which accepts and normalises abusive and threatening behaviour’’.
It is unreasonable to rely on Twitter’s current model where the main defense is to personally block users or ignore tweets. Crimes such as cyberbullying or defamation cannot be tackled by the people experiencing it themselves. It is likely that these users will not be able to invest time and finances into managing content. They cannot be expected to simply take the high road and block or ignore violations. Instead, companies that host such platforms should devote significant resources to ensuring their safety for users. They should spend more to ensure that there is sufficient staff to remove illegal content effectively and promptly. It should not be left to the police or individual victims to take steps to remove such content. Currently, the amount of resources invested in keeping Twitter safe is insubstantial compared to the size of the problem. Keeping in mind the scale of Twitter's profits, it should not be impractical to invest more in securing its safety.
According to Professor Lorna Woods of the University of Essex, “Article 8 ECHR is not just about privacy, it includes the spaces where we interact with society’’. She suggests that, rather than focusing solely on Article 10 ECHR, there should be reference Article 8 ECHR in cases concerning social networking sites in order to protect our human rights. After all, social networking sites are increasingly making public those spaces we previously thought to be private. In light of this, Article 8 should be clearly incorporated into terms of service or user agreements of social networking sites.
Various recent panels have discussed the issue of social media and law. Lorna Gillies of the University of Strathclyde addresses complications arising from the transnational nature of social media. Gillies’ remarks concern what many regard as public and private spaces. The transition to social media as a prominent, public communication platform has been rapid and many laws have had to catch up as courts grapple to apply them to online violations. While courts are continuing to develop case law around social media, online platforms themselves should also adapt policies and rules.
As we look at social media, and particularly Twitter, there is strong evidence to suggest that further discussion is needed around the legal frameworks and safeguards to make Twitter safer, particularly in reference to Article 8. The UK Parliament has discussed codifying laws to consolidate all offenses committed on social media, and came to the conclusion that this is not necessary. This seems to make sense; current laws appear to be sufficient with enforcement and protection online being the issue at hand. The Internet is a huge place and it may be impossible to police as a whole but there are undoubtedly gaps in Twitter’s enforcement mechanisms. This ranges from a description of violations to consequences of reporting which allow human rights violations to perpetuate. It is important that prosecutorial authorities clarify that the Internet is not a place with effective impunity for only the most serious breaches of the law. It must be safe for everyone to use.