Off-screen and out of reach?

29th June 2021 Media Law

Over the course of the last 15 years, social media has had an increasingly transformative effect on the way that we interact with one another.

With one short post, we are now able to exchange views with presidents, pop stars and movie idols as easily as with our friends and family.

However, whilst it has arguably levelled the playing field of communication - democratising and simplifying how we obtain and circulate material - it has also created a significant challenge.

Any brief glance across the huge volume of output on the most popular platforms will illustrate how, alongside many familiar names and brands, there are many individuals who use aliases - noms de web, if you will - to conceal their true identities.

That's not necessarily a problem in itself. There are many legitimate reasons why people might feel more comfortable expressing their views without others knowing who they are.

It presents a difficulty, however, when their views potentially break the law.

Last August, I spoke to the Daily Telegraph about how adverse online reviews had contributed to defamation cases by the High Court almost trebling in the space of just three years.

Now, news media have reported that the Solicitors Regulation Authority (SRA), the body which oversees solicitors and barristers in England and Wales, is "ramping up efforts" to unmask anonymous online commentators who claim to be lawyers and post comments which might breach professional codes of conduct.

The issue actually concerns more than the legal industry and can have considerable personal and commercial consequences.

Myself and my colleagues at JMW Solicitors find ourselves regularly asked to deal with posts not only made on social media but on some of the most widely-used review sites.

Part of the conundrum facing those who decide to confront anonymous critics is that they need to build up a case against them.

Whilst not knowing who they are does not prevent legal action, it is not necessarily helpful.

One of the steps commonly relied upon both in defamation proceedings and broader civil litigation is something called a Norwich Pharmacal order.

It is named after a near 50-year-old case and, in essence, imposes an obligation upon the individual or organisation which has inadvertently become involved in wrongdoing to disclose of information related to that wrongdoing.

Websites, including social media platforms, frequently find themselves the subject of such orders.

In much the same way, websites hosting user-generated content can be served with a notice under the Defamation Act 2013 requesting them to disclose information about those posting material which has been objected to and remove that material altogether.

If websites fail to follow the procedures set out in the Act, they can be made liable for defamatory posts by others.

There are those who believe that being able to identify anonymised individuals possibly risks inhibiting comment and, therefore, impacts on the freedom of speech.

However, it's worth taking the perspective of those people or businesses whose reputations are damaged as well as a general sense of unease about the ability to publish highly critical material.

After all, almost 17,000 people last year signed an online petition calling on the Government to oblige social media platforms to ban the use of anonymous accounts.

Whilst the SRA's involvement and recent focus on online trolls might make the problem seem new, it is one which has affected businesses and individuals across the globe since social media was in its relative infancy, be they carpet cleaners in the United States, cemetery managers in Ireland or my own clients in England and Wales.

It remains to be seen whether the progression of the Online Safety Bill through the UK parliament will definitively tackle the issue.

Outlined in the Queen's Speech last month and introduced the following day, it aims to establish a new means of regulating "illegal and harmful content" online.

As part of those arrangements, owners of websites or social media platforms would be obliged to comply with its terms or risk fines of "up to £18 million or 10% of annual global turnover, whichever is higher". Access to sites failing to address the problem effectively could also be blocked.

In my opinion, only such stern action, backed up by the prospect of severe personal penalties, is likely to make so-called 'keyboard warriors' a little less able to give free rein to their opinions.

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Laura Wilkinson is an Associate Solicitor located in Manchesterin our Commercial LitigationMedia Law departments

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