I presented a paper at the Society of Legal Scholars conference in Edinburgh with the title ‘Twitter Defamation: A Defence of Responsible Tweeting”. I’ve put a little movie version of the slides of my presentation at the bottom of this blog post.
The primary idea behind the paper was to develop a little further an idea that I had soon after the Sally Bercow/Lord McAlpine business, and which I blogged about for The Justice Gap at the time. At a detailed level, the question I am asking is whether there should be a specific form of defence against defamation available for tweeters – a ‘defence of responsible tweeting’ – when tweeters have behaved ‘responsibly’ in terms that make sense for twitter, rather than for conventional journalism. As Alex Andreou asked in the New Statesman at the time, ‘Can every Twitter user be expected to fact check Newsnight?’
I think not – and in my paper (see the slides below) I set out a broad-brush, first draft idea of the kind of level of fact checking and verification that I think would be reasonable and suit the nature of Twitter, as well as how this might fit with the law. As I said, this is very much a work in progress…
More research is needed, and some of the ideas are still rudimentary – but the more I have looked into the subject the clearer it has seemed to me that our defamation law, even after the reforms in the Defamation Act 2013, has not taken on board the changes that have come about as a result of the development of the social media, and of Twitter in particular. It is still law based in the ‘old’ world, designed to deal with conventional journalism – and the reforms have been designed to shift the balance more in favour of freedom of expression also in the old sense, to help conventional journalists. The defences provided also seem to suit conventional journalists rather than bloggers – and in particular Tweeters.
I hope this can change – and that a way can be found to help Tweeters more – because, as well as outlining a legal defence of ‘responsible tweeting’, in the end my paper is intended as a ‘real’ defence of responsible tweeting. For me, tweeting is important, and makes a valuable contribution to freedom of expression – it does things that conventional journalism in particular fails to do. It is a two way process – and though people often seem to forget it, freedom of expression, as set out in the various human rights documents (and in particular the European Convention on Human Rights, which celebrated 60 years of existence yesterday) includes the right to both impart and receive information. Twitter, and other forms of social media, allow that two-way process in a way that has never been possible before. It is also a process that is available to ordinary people, not just professional journalists – and freedom of expression is a human right, not a journalists’ right.
This is not just a theoretical right – Twitter has a practical and real impact on freedom of speech. It’s pretty much impossible to list all the ways in which Twitter enables freedom of speech, but one particular set of ways relate to its interaction with conventional media. It allows people to comment on things in the conventional media, to correct for errors, to criticise and highlight bias or prejudices, to add value by adding links to more information. It can take programmes or stories that have small audiences and disseminate them to much, much wider audiences. It can spread stories from one part of the world to another – so we can see make comparisons and see things in perspective. It provides a voice for people who aren’t professional journalists, politicians or celebrities – people who find it very hard to have a voice through the conventional media.
All of this matters – and all of this is worth defending. Of course there are some hideous problems with Twitter, and some thoroughly irresponsible uses, from the horrendous threats and abuse we’ve seen recently, to hate speech, to rumour-mongering and defamation – but we shouldn’t forget the great benefits and throw the baby out with the bathwater. Responsible tweeting matters.
These are the slides – I hope that there will be a proper written paper in the reasonably near future.