Social media networks are still largely an uncharted grey area, a playground of cyber-relations where local laws meet the global village and must attempt to create order out of the chaos of spontaneous expression. Millions of individual messages circulate in confusing stream that evades any clear sense of how we should police what is being said and what, if any, punishment we should offer to maintain a safe internet space. Arguments in defence of human rights, especially free speech, are offered alongside arguments against hate speech and incitement of violence. The authorities are fumbling without clear guidance, which results in uneven sentencing.

Introducing laws regulating the social media sphere would only make sense if there were also effective ways to enforce them. Is it possible to police millions of messages sent every day? Theoretically we could employ software to scan the internet for offensive words or phrases and take action accordingly. But the question is: who would be responsible for it and where would the funds come from? More difficult still – how, precisely, would they define the ‘offensive’?

Part of the issue stems from the nature of social media as a global means of communication: we produce messages aimed at limited groups of people, in a language with connotations that make sense locally, but we wind up with transnational distribution and thus a clash between the global and the local. The boundaries of what’s acceptable are fluid and changing, not set in stone. What we intended to be interpreted according to local customs may be spread, amplified, and misinterpreted.

But how harmful could a Tweet really be? Is tackling offensive Tweets really worth the risk of impinging upon this bastion of free speech, something so vital for a well-functioning democracy?When back in September Daniel Thomas, footballer at Port Talbot Town FC, published a homophobic and abusive tweet about the British Olympic diver Tom Daley, he was immediately arrested and suspended by his club. After considering his case, however, The Director of Public Prosecutions, Keir Starmer, said the message was a misguided attempt at humour not meant to reach Daley or his diving partner, and as a result no charges were brought against the footballer and he was reinstated by his club.

Stamer said:

“The time has come for an informed debate about the boundaries of free speech in an age of social media.”

He said it was not just a matter for prosecutors. “Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken.”

Similarly, the author of the airport joke, Paul Chambers, was cleared of conviction after being initially fined £600 costs, a £385 fine and £15 victim surcharge. He had tweeted in frustration when he discovered that Robin Hood airport in South Yorkshire was closed because of snow. He sent out a tweet declaring:

paulchambers_editThe lord chief justice, Lord Judge, sitting with Mr Justice Owen and Mr Justice Griffith Williams, said: “We have concluded that, on an objective assessment, the decision of the crown court that this ‘tweet’ constituted or included a message of a menacing character was not open to it.

“On this basis, the appeal against conviction must be allowed.”

However, not everyone gets away with Twitter abuse. In a recent high-profile case the former Sheffield United and Wales striker Ched Evans was sentenced to five years in prison for raping a teenager in a hotel room in Rhyl. His teammates took to Twitter and Facebook hours after the court ruling to express support while hurling abuse at the victim, calling her (among other names) a ‘money-grabbing little tramp’. The Twitter-related convictions came with the naming of the rape victim – a tweet identifying her name was circulated widely on Facebook as well as Twitter, becoming one of the trending words.

Nine people were convicted and fined £624 each, as the law in this case is clear: rape victims are granted lifelong anonymity by the courts and publicising a name is a criminal offence. They were all charged with publishing material that would likely lead members of the public to identify the complainant in a rape case, contrary to the Sexual Offences (Amendment) Act 1992.

‘Hurricane Sandy’s Worst Twitter Villain’, @comfortablysmug, also seems to be paying a high price for his recent social media activity. The man, swiftly identified as Shashank Tripathi, a Republican Party operative and a hedge-fund manager – a perfect, stereotypical villain, revelled in fabricating and spreading apocalyptic stories about the extent to which the East Coast was being ravaged by the hurricane. He told stories of truly biblical proportions: that the subway would shut for a week, that the whole Manhattan would lose power, that the stock exchange was under 3ft of water. Twitter filled up with images such as those of sharks swimming in flooded streets or the picturesque swirling clouds menacingly gathering over the Statue of Liberty. A few days after he was exposed he tweeted:

comfsmugTripathi resigned from his job as campaign manager for New York Republican congressional candidate Christopher Wight, though his attempt at contrition didn’t dissuade one city councillor, Peter Vallone, from saying criminal charges should be considered. “I hope the fact that I’m asking for criminal charges to be seriously considered will make him much less comfortable and much less smug,” Vallone was reported as saying.

It appears that many people treat Twitter and Facebook communications as spoken word, wherein lies part of the problem. The main distinction between social media messages and spoken word opinion is their permanent character and longevity. Once a Tweet is sent out it stays in the public domain, even if it is deleted by the user. And with such permanence of form comes the infinity of possible interpretations that live on and offend long after the mother-tweet is gone.

Naturally, everyone needs to complain about something or someone from time to time to vent frustration. Most often those complaints go unnoticed when they’re exchanged in a limited circle. However, improper use of social media, especially Twitter, could land their users in front of a judge, as the illusion of privacy is exposed for what it precisely is – an illusion. What enters the ether constitutes de facto public space, with virality being one of the defining characteristics of social media. Its open character means that anyone can make potentially libellous comments, ‘and no amount of smiley faces can free you from that,’ as Robin Thomson, a media law expert, put it. ‘It has changed everything for the man on the train who wants to say something nasty about someone else,’ he added.

So how can we even begin to define what is grossly offensive on social media? DPP Keir Starmer believes that context is everything:
“Many people use social media and it’s clear that quite a lot of what is posted on social media is offensive and we need to draw the line between the sorts of communications that require a criminal prosecution and those that don’t. What I’m keen to establish is the right balance between free speech on the one hand and prosecuting a serious wrong-doing on the other.

“This is a new phenomenon, we haven’t been here before, all of the law on free speech so far has been about places, incitement, we haven’t really drilled down and thought carefully through social media and where the boundaries are there.

“It is impossible to define by way of examples what is grossly offensive and that’s part of the problem … the context is everything. … The question I’m asked is ‘what is grossly offensive?’ and I can’t answer that in abstract.”

No doubt we will be seeing an increasing number of cases of internet libel in the coming months as the law is being drawn before our eyes (such as the most recent case of arrest over a Facebook post in India). It is encouraging that the Director of Public Prosecutions expresses the sentiment towards a high threshold of prosecution in order to protect freedom of speech. My hunch is that we should perhaps side with Keir Starmer in striving to maintain social media’s relative freedom from intervention. But if we don’t formally prosecute the offenders we must collectively arrive at other measures to keep the internet a safe and user-friendly space. The more pervasive the internet, the more sophisticated users we become, so here’s hoping that in due course we will realise that the internet is a public sphere (with all the consequences that come with it) and we will prove able to self-regulate our online behaviour without the need for external policing.