We’ve seen social media as a tool for social justice but its relationship with the law is challenging.
Given the rapid growth of our interconnected world, few people would deny the role that social media plays – a repository of information, a driver of ideas and innovation, and increasingly a tool of social justice.
Devika Khandelwal wrote in Modern Diplomacy in 2019:
[I]n today’s global world where many countries witness gross violation of human rights and political and social chaos, different online platforms have become a safe place to share their ordeal and demand justice … Internet provides us with platforms where we can fight for our rights and against injustice, support people from all across the world in gaining justice, and help people become better informed citizens of the world.
The Rise of Social Media
Social media is enjoying phenomenal growth. It is estimated Facebook has 2.7 billion users, Instagram 1 billion, WhatsApp 500 million, Twitter 330 million and LinkedIn 310 million. Even Myspace, thought to be dying as a platform, still has almost 15 million monthly users. All told, social media holds the world together.
Anderson et al wrote Activism in the Social Media Age about the fifth anniversary of the hashtag #BlackLivesMatter. They noted that a Pew Research Center analysis of public tweets found the hashtag was used 17,200 times a day in the five-year period from 2013 to 2018, or approximately 31 million times. An updated story in 2020 found that it was used 47.5 million times – or 3.7 million times a day – during the two-week period of May 26 to June 7, 2020. May 25, 2020 was the pivotal day when a white police officer killed African American George Floyd. This event sparked riots, sit-ins, discussion and promises of widespread social change in the treatment of People of Colour by police services. In their research, Anderson et al found that up to half of Black and Latinx social media users saw social media as crucial for political engagement, compared to a third of white social media users.
Lisa Silver is an associate professor at the University of Calgary’s Faculty of Law and an expert on social media law. In a telephone interview, she said it’s vital to recognize social media as “an important form of community. It can give causes space for a voice.” A downside is the use of social media to spread hate. Silver cites a recent poll conducted for the Association for Canadian Studies that “found that 60% of Canadians have encountered online hate speech.” She continued:
It’s a conundrum. We are in a place where privacy is such a concern, and Canadians have competing rights – we must balance those [access to information and free speech] rights with the right to privacy.
Family law, insurance investigations and criminal cases now widely use evidence found in social media. There are battles raging over digital privacy rights and freedom of expression, corporate online responsibility, government accountability, and the implementation of new privacy laws. According to the Ford Foundation, one of the most significant electronic privacy cases took place in the U.S. Supreme Court: Carpenter v. United States. The court held that accessing historical records containing cellphone locations without a search warrant is a violation of the Fourth Amendment, which prohibits unreasonable search and seizure.
The Boundaries of Law
Silver said a major challenge in the relationship between social media and the law is that “the Internet works at the blink of an eye. Social media is a virtual space and yet the law is tethered to a jurisdiction or a static place.” Because of the fluidity of social media, “it gets very hard for the law to get hold of it. The courts are only dealing with the artifacts [in a legal framework, law is an artifact – it is the creation of the collective minds of a community or a society, essentially the result of a thought process] and when you think of social media, it’s not static. It can be everything from part of a diary to part of an image. The law needs boundaries, paper boundaries or legal boundaries,” while social media is boundless.
Over the past decade, the digital world has changed the way the law works – and the way it sees itself. Privacy has become a watchword. For example, in 2014, the Supreme Court of Canada ruled in R. v. Spencer that privacy rights are paramount – and this is essential in areas such as subscriber information. And the government of Stephen Harper found itself in a political battle over privacy issues with its 2015 passage of anti-terrorist Bill C-51, following an October 2014 attack on Parliament Hill. Michael Geist in The Canadian Digital Law Decade said:
Introduced in the aftermath of the attack on Parliament Hill, the bill hit on a wide range of privacy-related concerns including expanded government information sharing with limited oversight … Bill C-51 would ultimately pass with minor changes, but it became an issue in the 2015 election as opposition parties campaigned on reforms to the legislation.
As for how the relationship between social media and the law will continue to play out, Silver says it’s hard to reconcile. “The law is traditional and based on evidence. The court is stuck on documents when it comes to evidence.” Social media can continue to morph from “the time it is created to the time it becomes a [legal] document. There’s also a product (issue) with social media in cyberspace … the law tends to fumble around and say ‘where can we put this in our silo?’ We need to figure out ways to find a place in the archive of law” for social media.
Criminology professors James Walsh and Christopher O’Connor said in Social media and policing: A review of recent research:
Social media offer alternative circuits of publicity, facilitating citizen journalism or instances where technologically literate and equipped individuals document abuse, expose corruption, and provide a check on power … In relation to policing, social media provide important forums for claims making and mobilization around racialized police violence … social media has brought unprecedented attention to the issue, offering opportunities to contest common sense assumptions, alter public attitudes, and apply pressure to produce institutional change.
As for privacy, Silver adds “the law has not anticipated that people are seeing hardware as the core of their being.” This opens two world views:
- the computer as hardware – as a machine used to get things done, and
- the interconnected system of computers as a large depot for a continually changing process of thinking and the collection of viewpoints and private data – a place where people essentially warehouse their lives.
While social media allows the dissemination and gathering of information conducted from a particular point of view, Silver says “it also attracts the opposition.” Regulation is always a probability. She adds that “in a democratic country … you have to be critical of regulation. There is always room for disagreement.” And with the way things can change on social media over a short time span, it is clear that “what happens on social media doesn’t stay on social media.”
Hate speech can spill over and become a hate crime. It’s not like the social cyberspace community is inclusive; there is a lot of synergy between the real world and the virtual.
A Tool for Social Action
According to John McNutt, writing in OUPblog, technology can offer positive social media-focused answers to questions of data collection and interpretation. For instance:
[C]ivic technology combines data with technology that harnesses the work of volunteer technologists to address issues in government and nonprofit organizations. Code for America, for example, provides fellowships as a means to link volunteer talent with organizations. Hackathons [rigorous events where computer programmers join collaboratively with designers and managers to develop software projects] are another means of to bring technologists and organizations together.
Other movements include:
- Data4Good (linking social movements with professional data scientists), and
- Data Kind (described by McNutt as “an international non-profit that applies data science tools to human problems worldwide … as diverse as working with foster care workers and disaster risk management”).
Establishing its role as a tool for social action, social media has been instrumental in actions such as:
- the Arab Spring uprisings of the early 2010s,
- the Human Rights Campaign and its #LoveWins online initiatives focusing on legalizing same-sex marriage in the U.S., and
- spreading the message for the Occupy Wall Street movement.
In Canada, the Idle No More Movement is an Indigenous-led protest against the dismantling of environmental protection laws in Canada. It was created in, and has been sustained by, social media. In Social Media and the Idle No More Movement: Citizenship, Activism and Dissent in Canada, professor Jennifer Tupper describes the beginning of Idle No More:
[It] began in Saskatchewan, in late 2012 when four women, Sheelah McLean, Nina Wilson, Sylvia McAdam, and Jessica Gordon, began to exchange emails about the Conservative Government’s omnibus budget bill, C-45.
Bill C-45 threatened the already tenuous treaty relationships between First Nations and the federal government. By having her students follow Idle No More on Twitter, Tupper found that “it facilitated continued considerations of colonialism in the context of engaged citizenship.”
Changing the Justice System?
J.H. Grey defines discretion in Discretion in Administrative Law as “the power to make a decision that cannot be determined to be right or wrong in any objective way”. In the legal world, discretion is necessary. “We want a human truth, a humanity,” said Silver. She concludes:
Exponentially there has been an increase of social media in the courtroom. It covers everything – Twitter to Facebook to Myspace – all of those platforms are there and that is a concern for the courts. The courtroom is changing and what we perceive as the justice system is going to change, and it should change for the better.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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