New Media and Social Media are now here in force, and ostensibly to stay. Some would say that the developments and advantages offered and brought by them are “off the hook”, awesome, and very well warranted. Others would say that the perils they offer, both real and potential, are due to the fact that a good idea or series of ideas, have gone “off the rails” and terribly astray. Are both sides wrong, or is one side right? Let us consider those “rails”.
“R” for Relationships:
We have seen the benefits of being able to “link” with others by way of professional networks, and to find and review, or verify professional and academic credentials. We have also seen the benefits of online résumé posting sites and job sites, enabling people to look for work without the initial legwork of yesteryear needed for mass résumé drop-offs. Consider, however, those personal websites managed by individuals, as opposed to business entities. When you take a picture of someone at a social or community event, and then post that picture online, what is the result? Can someone then be stalked or cyber-stalked; and if so, what would be the liability for the individual poster, and the site as host? Does an individual with criminal warrants issued and outstanding for their apprehension, have any recourse against the poster for letting those pursuing said person, know precisely who or which social circle(s) to watch and follow in order to find him; or her? Does merely posing and smiling for a picture constitute consent? What is the extent of that consent – is it to share the images with a small circle of “In” friends who have full access to one’s personal space, a larger group of 500+ “social” friends, or the entire world?
We should also recall the irrevocability of things once posted, as free and available for re-tweet, re-blog, liking, following, cutting and pasting, and so forth. Like a wild animal once released, its gone! Truth has also become both fleeting and optional, as reputable news organizations are increasingly being caught for inadvertent misinformation, intentional disinformation, or theft of information by phone-hacking, email hacking, and sundry other means. What, then, is the relationship of the news media to the authorities; what is the relationship of the people to their news media; and which hookup is more important and valuable for society as a whole? Just as interpersonal relationships are subject to stresses and other perceived higher priorities from time to time (from which they may not fully recover, if ever), so too are the people and their news media; especially in times of ….. conflict, whether created, or imagined, or actual.
“A” for Abuse:
A cursory review of current and recent news stories (in Europe and the North American milieu), will show a broad selection of cases involving cyber-bullying, cyber-stalking as earlier mentioned, allegations of online infringement of Intellectual Property Rights (IPR), and other illegalities related to the use and abuse of New and Social Media. In New Jersey,[1] for example, the “privacy invasion” cause of action includes inter alia, such grounds as: (i) “an intentional intrusion upon another’s seclusion or private concerns, which would be highly offensive to a reasonable person”; and (ii) “a public exposure of another’s private affairs which the public has no legitimate interest in learning of and which would be offensive to a reasonable person.” Of course, the foundations for the “Public Figure” exception with regard to libel, a related tort, had already been well established in the case of New York Times v. Sullivan, 376 U.S. 254 (1964).
“I” for Information:
Regardless of how you choose and manage your privacy settings on social media sites, things can apparently go quite wrong. At times, people share too much personal information about themselves, as they get carried away, and at other times, they can share too much personal information of and about others. In-person conversation with a single person or with a group of people that you can see, and who’se reactions you can guage in real time, is certainly not the same as emailing all, tweeting, mass texting, wall posting, and so forth. Call me a Luddite if you must – untrue – but one should REALLY stop, read-over, and think for a moment, or two, or three, in light of the above (sender privacy, over-sharing, third-party privacy, difficulty of retraction in an electronic world after posts “go viral”), before hitting “send” or “done”!
“L” for Location:
The ability of advertisers to track you and your physical movements through your mobile device(s) is definitely a boon for target marketers, everywhere. It is also a potential bonus for the consumer (actual and potential), to be advised of deals along the way or in the vicinity, on goods and services that they have “liked” or that they might find interesting, thanks to the prior and deep knowledge somehow acquired by certain marketers, of their online browsing habits.[2] We are all now, or should all now be, far more attuned to the dangers of hacking; and especially in law firms and other professional organizations.[3] However, what happens if an accountant, a Mergers and Acquisitions specialist, or lawyer known to be proficient in a specific practice area – such as bankruptcy and insolvency/restructuring, securities law, or M&A – through geo-tagging, now broadcasts or updates his or her location on a regular basis as being at company X. Knowledge is power, and someone could trade on that information, and make a killing to the detriment of others. But, is such information non-public and material, or is it a link to or a hint of, information that is both non-public and material that is sufficient to subsume the former (link) within the latter (motherlode) as imbued with the same or a sufficiently similar character?
Are both the beneficiary and the smartphone owner liable? If so, why not also the service provider who “knew or should have known” of that risk of insider trading; especially when settings default to “on” or “yes, please track me and broadcast”? Are the supervisors of said accountant, lawyer, or M&A professional also liable in respondeat superior for lax supervision, or for not ensuring that company locks or factory locks were put on all company phones issued, or added to all personal phones used, for company business? Of what use is a smartphone, as and when so dumbed-down; and does such mandatory hampering restrict anyone’s freedom of speech or association? How far up, down, across, and around is that chain of proximate causality and alleged ultimate responsibility to run? The penalties for insider trading, as well as for aiding and abetting insider trading, can be onerous; but to what extent can the DMCA protections be used, by any of the here accused, to argue and mount a defence, by analogy?
“S” for Security:
Nobody in their right minds should argue against the benefits of current abilities to send true news and emergency tweets (shooter on the loose, hurricane or tornado alert, amber alert, or election exit poll), in enhancing the public safety. At the same time, few law abiding citizens should dispute the boon to law enforcement of new and social media in discovering crimes, tracking and apprehending criminals, and prosecuting them…………..or maybe they should!
Are all wrongdoers who are trapped by honeypots, truly guilty from the start, or did some of them have the seeds for their alleged crimes planted and watered by professionals posing as peons? It is often said that there is always a fitting punishment ready and waiting for the most suitable criminal.
In a country of 1 Billion plus citizens, is maintaining the stability of the government, social cohesion, and the public order a sufficiently meritorious reason to warrant blanket censorship of speech, or is it (as seen in the eyes of those thousands of miles away who do not share the same culture, history, understanding of that local populace, or mandate to keep that faraway peace and thereby safeguard the welfare of that People), an infringement of human rights?
In a country involved in multiple deadly conflicts, nearly everywhere, and on a near-constant basis, is leaked news of alleged government malfeasance, interference in the internal affairs of sovereign nations, genocidal behaviour, and war crimes (that would otherwise have been deemed welcome and protected whistleblowing as and when done by others thousands of miles away who do not share the same culture, history, laws, or points of view) such clear and present a danger to its national security and the welfare of its people that it is worthy of being deemed as tantamount to treason; whether done by a Citizen or a foreigner, or a combination of these?
By which moral or primordial standard, and of which jurisdiction or entity or People, should “these” rights and the proper extent or exercise of “those” rights in a particular geography, be judged? Can there really be one single international or global standard, when all of the differences, which make us as one, are truly and fully considered? It is a near inviolable right of nation states to manage and legislate in their own sovereign jurisdictions for the health, morals, and welfare of their citizens. All else is, in theory, subject to challenge including under Responsibility to Protect (R2P). Europe may well have taken the lead in creating, defining, and attemtping to enforce its own version of “rights” across all fronts, and through all old and new and social media. Considering, however, the cultural and linguistic distinctions amongst and between the 200 or so odd nation states and the tens of thousands of ethnic groups on this Planet, perhaps it is time for some or all of those outside Europe to get together and set down and enforce in their turn, their own local standards of “TAMEFACE“, where the first “A” can be taken to stand for Black African, or Asian, or Arabian, or ancient and Latin American, when considering and presented as, their “Traditional “A” Morals, Ethics, Faiths, Attitudes and Artefacts, Conduct, Customs, and Establishments“, which are and would perhaps be, somewhat more geographically and situation-specific in the responsible determination and regulation of rights (including speech), for the health, morals, and welfare of their local populations?
In the meantime, it essentially seems that we have entered an age of “SSS-OH-SSS” – Selective and Sporadic Suppression of Harmful Speech for Security’s Sake. In this way , then, dissent or critical and in-depth analysis with all of the facts needed for such a critical and in-depth analysis, can very easily be put to sleep …. zzz …. or rendered otherwise non-functional. Some new and social media managers may be tempted to suppress all speech that is not supportive, promote supportive speech that they know is not balanced or even correct, or become self-censoring to preserve their licenses, maintain the safe float of the boat of state, and keep their privileged access, in those more compulsive jurisdictions wheresoever found.
Of course, compulsion, when properly and adroitly compelled and impelled to swing the animal by its tail and not the opposite,[4] can be seen by most if not all onlookers to come more from media peers and the public, than from their political principals in any dictatorship or oligarchy.
Oh whither then, these new and social media?
The jury has yet to rule!
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Author:
Ekundayo George is a Sociologist, Lawyer, and Strategic Consultant, with experience in business law and counseling, diverse litigation, and regulatory practice. He is licensed to practice law in Ontario, Canada, as well as multiple states of the United States of America (U.S.A.); and he has published in Environmental Law and Policy (National Security aspects).
Hyperlinks to external sites are provided as a courtesy and convenience, only, and no warranty is made or responsibility assumed for their content, accuracy, or availability.
This article does not constitute legal advice or create any lawyer-client relationship.
[1] Bannan, John J, Encyclopedia of New Jersey Causes of Action (1997). New Jersey Law Journal Books.
[2] The issue of tracking cookies, whether fleeting or persistent, is a worth an entirely separate post or series of posts. The European Union, for example, has made moves to clamp-down on this form of data gathering and social tracking. See e.g. EU Directive 2009/136/EC – The EU Directive on Privacy and Electronic Communications (November 25, 2009). http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:En:PDF
[3] See e.g. Jennifer Smith. Don’t Click On That Link! Client Secrets at Risk as Hackers Target Law Firms. WSJ Blogs: Law Blog. Published June 25, 2012. http://blogs.wsj.com/law/2012/06/25/dont-click-on-that-link-client-secrets-at-risk-as-hackers-target-law-firms/
[4] See generally Abraham, Joost and Meerloo, Morits, Mental Seduction and Menticide: the psychology of thought control and brainwashing. London: Jonathan Cape (1957).
Ogalaws 