Ashley Hurst of Olswang LLP started off the event noting that it was important to sit back and consider what it is about social media and the Internet in general that was giving lawyers, and businesses in general, a headache. He named:
- the nature and extent of authors and editors it enables (some of whom are regulated and monitored, others of whom are not);
- the problem of anonymity;
- the role of online intermediaries;
- the permanence and the speed of republication – which causes enormous problems in the reputational sphere; and
- issues of triviality – whilst the new serious harm test has helped reduce frivolous libel claims, there is no similar threshold at present to enable easy strike-out of weak (or minimal) data protection claims.
Ashley also commented on a number of key trends he was seeing in this ever-changing area, which include the following:
- Data protection is becoming the most effective weapon to remove embarrassing or distressing content online. People are increasingly deciding to protect their reputations with data protection rights (which are now protected by the EU Charter), rather than basing their claims in libel or on Article 8 ECHR rights. With the General Data Protection Regulation round the corner, it is likely that the UK is going to edge closer towards the US-style system of class actions in respect of data breaches (as currently seen with the Morrisons claim) and litigation funders and claimant lawyers will all be alive to the potential gains to be made in this newly fashionable area of the law.
- Courts are increasingly willing to grant injunctions in the Internet sphere to prevent wrongdoing (as seen with the Cartier and Popcorn time cases).
- There is a lack of harmonisation of defences available to intermediaries. Notably, the E-Commerce Directive explicitly provides that the hosting defences available for most content disputes do not apply to data protection claims.
A claimant’s toolkit for content disputes includes a wide variety of causes of action, such as defamation, privacy, harassment, data protection, copyright infringement, trade mark infringement, passing off and contract (breach of online terms of use of websites). This was evidenced most recently in the case of Galloway v Frazer, Google Inc (YouTube) and Ors, where George Galloway advanced numerous causes of action (resulting in a disproportionately long judgment and disproportionate use of court resources in an otherwise fairly simple case).
Ashley considered points to look for in the immediate future in this developing area, including Vidal-Hall in the Supreme Court, the Court of Appeal rulings on Cartier (Cartier International v British Sky Broadcasting, listed for 13 and 14 April 2016) and Lachaux (Lachaux v Independent Print Ltd, expected to be listed for Autumn 2016), the implementation of the General Data Protection Regulation and growing challenges to the journalistic exception provided by the Data Protection Act 1998, s 32 (which has been used very widely by journalists to date).
Edward Arnold, a Senior Associate in Olswang’s Employment team, then talked about social media in the workplace. The legal framework governing this area includes the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.
He highlighted the increasing importance Articles 8 and 10 of the Human Rights Act 1998 in unfair dismissal claims and discussed the interesting recent case of Barbulescu v Romania -31496/08 [2016] ECHR 61, in which the ECHR held that employers who monitored their employees’ workplace communications did not necessarily violate their Article 8 rights. It was key to undertake an appropriate balance of the conflicting rights. In this case, whilst the employee’s Article 8 rights had been engaged, the employer’s monitoring of communications pursuant to workplace rules was reasonable in the context of disciplinary proceedings.
He also drew on the importance of managing employees in respect of their use of social media. Specifically, the importance of setting clear (and well publicised) standards of conduct, such as giving examples of what constitutes appropriate and inappropriate conduct and guidance on when it is appropriate to add business contacts to personal social media accounts. It is crucial that these policies are applied by employers consistently. He went on to discuss fair/unfair dismissal examples of derogatory comments on social media and non-work related tweets.
Ed finished by considering the protection of employer’s interests and information. In particular, he discussed authorities that considered who owns the data in employees’ social media accounts, restrictions on ex-employees and soliciting and status updates.
Last to present was Steve Kuncewicz, Head of IP and Media at Burmans in Manchester. Steve talked through the regulation of online advertising, which includes the Consumer Protection from Unfair Advertising Regulations 2008, which govern unfair commercial practices including misleading statements made by advertisers. He highlighted that there were criminal offences sitting behind this regime and, although there had not been any prosecutions to date, there had been two very near misses. In addition, the ASA is required to administer the CAP code which, as of five years ago, had its remit expanded very widely to include, amongst other things, social media platforms. The ASA makes its judgements on advertisements based on what they thought advertisers meant, not what they actually did.
One of the interesting areas he discussed was where people pass themselves off as a consumer when they are not one. There have been recent well publicised cases involving Wayne Rooney, Millie Macintosh and Katie Price. He drew an interesting distinction between ASA rulings in relation to two of Wayne Rooney’s tweets. For example, he described how the ASA banned the following promotional Wayne Rooney tweet:
‘My resolution – to start the year as a champion, and finish it as a champion… #makeitcount’, with a link to gonike.me/makeitcount.
Steve described how the ASA ruled that in the absence of a marker (eg #ad or #spon), the tweets were not obviously identifiable as Nike marketing communications and breached the CAP code rules in relation to marketing communications. He highlighted that in contrast, the ASA found the following tweet by Wayne to be acceptable because the overall effect of the tweet was obviously identifiable as a Nike marketing communication:
‘The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground.’
Steve discussed a wide range of examples to stress the importance of marketing communications being obviously identifiable to consumers in order to avoid breaching the CAP code rules.
Steve finished his talk by highlighting the future rise of fake reviews, especially in the US, search engine optimisation marketing and the opportunities and risks that could come with getting it wrong.
This is a brief summary report of the event and cannot do justice to the insight and detail of the information shared during the event.
Katharine Lammiman is a Trainee Solicitor at Olswang LLP.
