Monthly Archives: August 2011

Riot Act – Social Media, Its Role In The Riots And Where We Go From Here

The debate over social media and its role in communications as well as wider society has been all over the news recently.

We’ve had the Superinjunction controversy – where the identity of a Footballer trying to surpress the details of an extramarital affair was spectacularly “outed” by Twitter users, the Twitter Joke Trial – involving an aspiring Accountant convicted for the offence of sending a Tweet of “menacing character” under the Communications Act 2003 and the Trafigura scandal – where the identity of a commodities broker was briefly hidden behind a superinjunction before the details of the case, the name the Company involved and accounts of parliamentary scrutiny into its business were exposed by a political blogger, allegedly from his kitchen .

Every one of the cases touched on a major legal and social issue – freedom of the press and inidividuals, the nanny state and the reach of both the civil and criminal law in the online world, but they were issues to get angry about from a fairly detached point of view, driven more by the true north of our moral compass rather than real, visceral anger or fear.

This week, however, has been a little different. On the one hand everything has changed, but on the other everything remains the same. We’ve seen what various media outlets have described as “the first social media riot”.

A shooting of a young man in London led to protest, which quickly changed beyond all recognition into what was clearly opportunistic theft driven by aggressive consumerism and a divide between the rich and poor. That divide exists 24/7, every day-we’ve just been made acutely aware of it, violently.

I’m not going to get into the politics behind it, the culture created by the media (which you don’t have to buy into, by the way) or weigh in on how those behind the riots were or weren’t to blame for the way they’ve ended up because I’m not qualified to – I’m a Lawyer working in a field I love with a wife and child on the way; a professional with a good career and great family.

Although I have done so harshly at times over the last few days, I’m now of the opinion that it isn’t my place to judge the rioters based on their backgrounds or family lives – the issues they deal with and are driven by are in some cases both too complex and too primal for me to understand. I’m not in touch with them, and maybe society as a whole isn’t.

None of this is any excuse for their actions, on which they’ll be judged by above all else. Yes, there’ll be concessions made to upbringing and their actual role in the riots but they are already being punished, even if some think that this is not enough.

It was easy to feel that way on Tuesday night whilst Manchester was being looted and its businesses smashed to pieces, along with the livelihoods of many of the smaller traders who simply didn’t stock what the mob was clearly “shopping” for – designer clothes, booze and high-end electronics.

Tuesday was a scary night, but the Police kept a very tense situation from becoming far worse. In a clear indication of exactly how bourgeois my own position is, I sat in a restaurant at an event with friends and only put my head above the parapet at around 10:30, when we were told that the riot may be heading our way.

A group of us picked our way through the City Centre, sticking as close as we could to the Police and main roads to avoid the rumoured muggings which, according to Twitter, were widespread. They weren’t, and although we saw plenty of “youths” in gloves and masks coming into the city with one thing on their mind, we got home safe. It was all we could ask for – the Police deserve all the credit in the world for keeping us safe and making sure that the violence didn’t repeat itself on Wednesday.

The aftermath consisted of property damage, injury and widespread rage amongst the population of a (rightly) proud city. The coverage of the rioters containing their soundbites did nothing to disabuse us of the opinion that they were simply looting and rioting because they could, because it was fun and because they could get away with it. I’ve led a privileged life but I’ve always had to work for what I wanted, even if it’s never been as hard as working two jobs to feed a family or involved any real manual labour. I’ve been lucky as much as I have rewarded and I’m very grateful, but I just can’t imagine how anyone could justify behaving the way the rioters did.

Coming in to Manchester on Wednesday, any liberal sentiment in my brain had taken a holiday. Whilst the Army should never be brought in to a situation like this, I do believe the Police should get tougher where they can (no, not using rubber bullets) and where not at risk of serious harm . The city was full of volunteers coming to clean up, although the job was pretty much already done by the time they arrived, thanks to Manchester City Council. I wanted to do something, but apart from grabbing a broom, what can a lawyer do? Every legal spin seemed in bad taste, apart from commenting on how social networks should NOT be blocked or “turned off”. So I did – thanks to the Drum for letting me.

So what else? Still angry, I thought about writing something and then remembered Steve Downes’ eloquent and understandably emotional blog about his daughter’s recent NHS experience. That standard is hard to emulate.

All I can do, then, is tell you about what I know. Arrests for criminal activity involving or facilitated by the use of a social network are a comparatively recent phenomenon, with recent high profile cases such as the infamous “Twitter Joke Trial” which involved an alleged threat to blow up an airport, and the 2009 obscenity case involving a blog featuring the fictional kidnap and rape of Girls Aloud being very obvious examples of the fact that criminal behaviour online is every bit as punishable as it is offline.

Users can’t always hide behind their profile picture and increasingly the Police will be monitoring their activity.

The arrests coming out of the riots show how old, and sometimes newer law is being used alongside new technology to deal with criminality online .The arrests so far have dealt with offences under the Public Order Act 1986 and the more recent Serious Offences Act 2007; this act in particular prohibits encouraging or assisting offences, and arrests for this kind of activity on the web are a new and landmark application of the existing system – it could be used alongside offences under the more recent Communications Act 2003 which deals with misuse of a public electronic communications network to send a message of menacing character or the Malicious Communications Act 1988 which deal with “malicious” messages to cover virtually all social network misuse.

Tellingly, the Prime Minister is now suggesting that messages promoting criminal behaviour should be blocked or deleted from social networks and anyone convicted of using them to incite social disorder be banned from using them. We’ve seen bans handed out as part of ASBOs previously as well as bans from contacting other users in harassment cases, but this is something new and will no doubt raise concerns over whether or not this will have any impact on the individual right to freedom of expression under Article 10 of the European Convention on Human Rights, although this can be restricted in the interests of public safety, national security or the prevention or detection of crime. Then there are the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 to consider, although Orange and T Mobile are already apparently assisting the Police in obtaining information on rioters who used their network.

As for the social networks themselves, as Twitter, Facebook and Research In Motion are all based outside the UK it’s hard to see how the Government can force them to take action, although it’s been suggested that talks will be held over their role in the riots and responsibilities going forward over the coming days.

It’s worth remembering, however, that if a network is taken down or access cut off, we will lose the chance to do more than receive messages inciting criminality – we also lose the right to trace those behind the messages as quickly, to get real news on the ground out to the public and media (although Twitter in particular has seen its fair share of hoaxes over the past few days) and to co-ordinate clean-up groups, which has been the greatest benefit coming out of the recent unrest.

Even if they were based in the UK, changing the current position, where social networks must delete or block material which they would be liable for disseminating as and when they are notified of it being on their servers to escape liability to force them into a more active role policing their users would represent a major shift in the government’s internet policy.

These riots were just as much squashed by social media as they were exacerbated by it – the platforms involved are neutral; the users are to blame. Monitoring rather than banning is a better solution.

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Theft By iPod? – Not for too much longer….(maybe)

One of the most little-known and heavily criticised provisions of copyright law may now finally be reformed, as Vince Cable is expected to announce his support for the recommendations in the recent Hargreaves Review of Intellectual Property which called for (amongst other changes) the legalisation of “format shifting”, which would allow private copying of legitimately purchased copyright material, including CDs, MP3s and videos by downloading them onto an MP3 player or other device. Currently, this is an infringement, which Cable is due to describe as “astonishing”.

Copyright is vital to the entertainment industry; it is the main way in which content producers make money. It protects music or video as soon as it is recorded; the copyright in a song or entire album belongs to either the Band or their label, giving them the right to control how and when their music is copied and made available, and allowing them to charge fees for doing so.

The law has not been able to keep up with technology. In the 80s, many LPs carried a warning that “Home Taping Is Killing Music”. We are in an even worse situation now; the Music Industry is terrified of the impact that illegal downloading is having upon CD sales. Copying or sharing a song without permission is copyright infringement, so theoretically anyone who copies a song or album onto their iPod could not only be sued by an artist or label, but also be prosecuted for a criminal offence.

The law never saw the iPod coming or predicted its success. The public at large thinks that transferring your CD collection onto an MP3 player is perfectly legal, but by transferring a CD onto your PC or iPod you are actually copying it, which is illegal even if only you listen to it. Downloading from iTunes is legal, as you’re paying for the copy of the song or album which you download, but when you pay for a CD you’re only permitted to listen to it in your own home. Changing the law will do a lot to clarify the situation.

Neither record companies or the Government will ever want to take action against an entire generation who is growing up with an iPod rather than a CD player, and no-one has ever actually been prosecuted for doing so. Recognising Format Shifting may well start another shift – in public opinion towards respect for copyright law.

But it may not be that easy. Of course, the proposed change is simple enough in the music industry, but the British Video Association has already come out in opposition to the relaxation of format-shifting on the grounds that it should be up to rights owners to decide how they provide a digital copy – many DVDs and Blu-Rays now come bundled with one, which means that as of today anyone copying the contents of an original disc could still be sued for infringement – that could all change along if format-shifting is liberalised.

It’s important to remember that File-sharing or commercial copying will still be an infringement; this is not a licence to upload to other users over P2P sites, merely an ability to transfer files between devices in your own home – sending it somewhere else is still not permitted. What effect this will have on the much-hated DRM (digital rights management) regime has yet to be seen.

As always, the first Court cases will tell the story here, but this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world. this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world.