Social media has so far proved hard to define, let alone regulate. At a recent seminar on 'Big Tech', social media and privacy, organised by Professor Robin Barnes of the Global Institute of Freedom and Awareness and Peter Coe of Aston University, social media was compared to the sea, unleashing unpredictable forces and incalculable hazards in a boundless world. It was suggested that, in lieu of a defined system of regulation, we should address these hazards as, when, and where they arise.
The suggestion is born of the view that social media platforms were founded on principles of libertarianism, akin to those that underpin the free market: the aim was an unregulated platform of free speech and the unimpeded sharing of ideas, on the basis that regulating or restricting free speech would cause more harm than any caused by the speech itself. It has become clear though that the notion of a 'truest' platform for speech is both idealistic and unrealistic, where damaging statements online regularly prompt us (and the courts) to weigh up people's competing rights to freedom of expression and privacy.
Libertarianism relies on the assumption that people read news objectively, and that reporting is considered rationally. Unfortunately, history tells us otherwise. The success of propaganda paved the way for its modern counterpart: fake news. It is often impossible to interpret fake news rationally, or even to discern the fake from the real, as those responsible for disseminating false information have an uncanny ability to weave truth and lies into a persuasive narrative.
Citizen journalism presents similar problems. Encouraged by slogans such as CNN's "You see it, you report it", the public is now primed to capture the news as it happens, often at the expense of context. This exacerbates the move towards instantaneous, picture- and video-based reporting, and away from traditional, investigative journalism, which requires both time and resources to unpick the truth.
It is also worth bearing in mind, in the context of a legal action for the potential misuse of private information, that pictures and video can result in more poignant invasions of privacy. As Lord Phillips M.R. explained in a case involving secret photographs of a high-profile wedding: “a photograph can certainly capture every detail of a momentary event in a way which words cannot.” He added that "special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts." A later judgment of the European Court of Human Rights in Recklos v Greece found that a personal image constitutes a chief attribute of personality. The law therefore acknowledges that visual details have the power to be especially intrusive.
All of this points to a different approach, that what we need is not less but more regulation, specifically that all publishers should be subject to regulation, including social media platforms. Currently, platforms tend to escape primary liability for problematic content, on the grounds that they are mere hosts as opposed to true publishers.
But, as will no doubt continue to fuel passionate debate, regulation poses problems too, not just the question of how to rein in 'Big Tech', with its considerable lobbying strength, but how tightly. Arguably, social media news streams now transcend politics, providing an influential space for voices that would otherwise remain unheard. In curbing the power of social media platforms, we risk muffling an important mouthpiece.