This week, I began a MOOC (Massive Open Online Course) with the Law Society regarding Social Media and the Law. This is an area of the law that I had never really considered before and so it piqued my interest. Let me fill you in on what I have learned to date.

Introduction to the world wide web

Did you know that the great world wide web was initially introduced in 1989 by Tim Berners-Lee. It started with content such as newspaper pages and then by 2000 moved to the type of content that we now use such as online banking, video gaming, dating sites, home videos, and webmail. This then led to content such as blogs, comments sections, online reviews, photographs and videos posted on social media.

The very first social media site to be launched was LinkedIn in 2002. I was surprised to hear this. It was followed shortly after by Facebook and YouTube in 2005. Quickly thereafter came Twitter in 2006. From 2009 onwards there was a flood of other sites launched such as WhatsApp, Instagram, Snapchat and TikTok. Big changes over a relatively short period of time.

Issues with Social Media

We are all acutely aware of the issues surrounding social media nowadays. Any time you go on social media, you are met with some news article with hundreds of comments, some of which are carefully thought through opinions, most of which are trolls launching tirades of abuse.

Social media contains a plethora of issues. While it is a fantastic platform for people to share life updates with friends or for news outlets to reach further and wider than before, it has led to large amounts of defamation, harassment, hate speech, abuse and privacy issues. People now have a platform that they never would have had before and the outreach can sometimes be frightening. These issues are separate and aside from the new phenomenon of Fake News and Artificial Intelligence. These are the new buzz words that are terrifying the life out of most people.

Fake News

Fake news is false or misleading information presented as news. Fake news is a dangerous and precarious addition to social media sites in recent years and includes satirical articles misinterpreted as genuine, photographs which have been altered to depict a certain situation and sensationalist or clickbait headlines that are not supported in the text. Fake news can and has reduced the impact of real news by competing with it and endeavouring to replace it. For example, a BuzzFeed News analysis found that the top fake news stories about the 2016 U.S. presidential election received more engagement on Facebook than top genuine stories from major media outlets. This is of very serious concern and clearly urgent regulation is required.

Artificial Intelligence

Artificial Intelligence is a particularly worrying development in that it is moving at such a pace it is becoming increasingly more difficult to keep up with and to comprehend its effect. There have been multiple calls by experts to halt all development of AI until we have a firmer grasp of its impact. Even Elon Musk has called for a pause citing “profound risks to society”.

ChatGPT is the newest development in the tech arena. In December 2022 it had no users and by February 2023, it had 100 million users meaning it became the fastest growing technology ever. Geoffrey Hinton, who has been dubbed the “godfather of AI” due to his lifelong work in the area, commented that AI might soon surpass the information capacity of the human brain. He explained that chatbots have the ability to learn independently and share knowledge. This means that whenever one chatbot acquires new information, it is automatically disseminated to the entire group. This allows AI chatbots to have the capability to accumulate knowledge far beyond the capacity of any individual. He fears that this rapid growth, without safeguards, could lead to huge job losses, a misinformation crisis and more violent societies. In a word, terrifying.

In addition, Irish universities have had to review how they assess students. Chat GPT has passed law school exams and even more worrying has sat Bar exams and passed! In my research for this article, I downloaded Chat GPT and asked for a “short essay on social media and the law in Ireland”. Within seconds, a well-structured essay popped up. For a busy article writing lawyer or a lackadaisical student, this would seem like the ideal solution to all of their writing needs. However, on a deeper examination, some of the laws referred to were incorrect and the nuances of human speech were clearly missing. With the speed at which Chat GPT is growing however it is unlikely that this will be a long-term problem.

Self-Regulation

The regulation of these platforms is a topic of great discussion in recent years. Initially the only form of regulation that these platforms had was self-regulation. For example, Facebook had "Community Standards", Twitter had "Twitter Rules" and YouTube's "Community Guidelines". While self-regulation is a useful reference tool, it is hardly appropriate that these platforms would be able to regulate themselves. Social media platforms contain a wealth of information about people such as personal data, photographs and videos. This information is freely given and can in some circumstances be freely distributed. For this reason, social media platforms should be regulated the same as any other body. For instance, lawyers in Ireland are regulated by a separate body being the Legal Services Regulation Authority, accountants are regulated by the Irish Auditing and Accounting Supervisory Authority, why should online platforms be treated differently.

Facebook recently set up an "Oversight Board", an independent body comprised of lawyers, politicians and academics, to deal with dissatisfaction with its notice and takedown procedure. This is the infamous board which suspended Donald Trump from Facebook. While the board appears to be doing some good work and making some well thought out decisions, it does not go far enough.

New Regulation

The E-Commerce Directive, and now the Digital Services Act which will apply from February 2024, is the single most important piece of legislation in respect of the potential liability of social media platforms for the content which they host. Social media platforms have steadfastly argued that they are not publishers and that they are simply platforms which facilitate users to publish their own material. However there has long been a counter-argument that social media platforms have a far from active role to play in the publication chain. The Act lays out new obligations for social media platforms which includes quickly taking down flagged illegal content, including hate speech, child sex abuse imagery and terrorist videos.

In Ireland, Coimisiún na Meán are the body empowered to regulate these platforms under the new Act. Non-compliance could result in large fines and both the Digital Services Coordinator and the European Commission will have the power to require immediate actions where necessary to address very serious harms.  In addition, individuals will have the right to seek compensation in respect of any damage or loss suffered due to an infringement by the platforms of their obligations under the Act.

The Act is seen as a global benchmark for social media platforms after what has clearly been a “light-touch” regime on how they manage content on their websites.

This is an area of the law that is emerging with great speed and as they say - “watch this space!”

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

June 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie