In the past when terrorist incidents rocked the UK or some other part of the world it was not uncommon for people to only hear about it later that evening on the news.

Today, with social media, that has changed and so after the devastating attack in Christchurch one month ago, people knew about it within minutes and were able to pay their condolences and share their grief. Unfortunately there is also a darker side to these platforms and people were able to share footage of the massacre online.

In response the privacy commissioner of New Zealand described Facebook as a group of “morally bankrupt pathological liars who enable genocide” and demanded that the company hand over the names of every individual who shared the video.

Strong words for sure but they are also reflective of a broader trend amongst many Western countries who are trying to clamp down on some of the seedier aspects of the web. Australian lawmakers have suggested that tech leaders at firms that fail to swiftly remove violent content be personally liable. Meanwhile Canada’s Minister for Democratic Institutions has requested a similar clampdown citing the fact that attempts at self-regulation have failed to deliver.

Politicians in the UK have also got involved in this debate and recently produced a white paper outlining proposals that, if enacted, would go further than any other country has gone before.

Beyond expected bans on content such as child pornography and the promotion of terrorism, the legislation would also cover certain types of behaviour as well including trolling and fake news.

These are all real issues and it is impossible not to be sympathetic to victims of cyber-bullying or ‘revenge porn’ but that in itself does not tell us how (or even whether) the law should intervene.

For a start the definitions presented are incredibly vague and unhelpful. What does it mean to troll someone? How ‘fake’ does fake news have to be before it is taken down? The last thing that my podcast needs is for it to become a weekly discussion of whether the Supreme Court thinks someone has the right to reply to a tweet using the Ryan Reynolds facepalm gif.

A much deeper criticism is that the proposals would establish a form of digital colonialism for the 21st Century. In other words while strict regulation would represent a significant inconvenience for the giant social media corporations like Facebook and Twitter they would be insurmountable hurdles for new companies that try to enter the market. In the run up to the Indian elections Facebook has deployed a gigantic workforce as part of a bid to combat fake news but it is hard to imagine that an upstart would be able to do anything similar during its early days. The legislation would be its own anti-competitive practice and place a stranglehold on future innovation in the sector.

On a fundamental level this white paper is simply not fit for purpose. Use of the criminal law requires the identification of a guilty action (actus reus) and guilty mind (mens rea) but when the action can be disguised with a VPN and the mental element does not exist in the minds of tech executives it is clear that this is wholly inappropriate.

The law can be a tool in this fight but when the parties exist across a wide digital landscape and have varying degrees of culpability, it is surgical precision that is required rather than the sledgehammer presented by Sajid Javid.

Obiter

This week’s episode of the podcast takes us back to the 2008 financial crisis. Litigation concerning Lehman Brothers rolls on and now HMRC wants a slice of the interest payments that have been awarded to creditors.

There are two new YouTube videos that cover equity & trusts. The first looks at the powers and duties of trustees while the second examines breaches of trust including tracing.

Make a difference today,

Marcus