Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

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The Seventh Circuit held recently in Brownmark Films, LLC v. Comedy Partners that, under certain circumstances, a trial court may dismiss a copyright infringement case based on a fair use defense prior to discovery.Over the years, the satiric Comedy Central cartoon program South Park and its creators have developed a reputation for biting social commentary. Past targets include World of Warcraft players, Occupy Wall Street, and the History Channel’s recent obsession with swamp creatures and World War II. In the show’s 12th season, in an episode entitled “Canada on Strike,” South Park took on the world of viral videos. The episode included a parody of a real-world viral video called “What What (In the Butt)” (“WWITB”) (Authors’ Note: possibly NSFW).  South Park’s version visually approximates the original, but plays on the naïveté of the starring nine-year-old South Park character, Butters, by using more childish elements; for example, by portraying Butters dressed up as a teddy bear and a daisy.Brownmark, the copyright holder for the original WWITB video, filed suit for copyright infringement against South Park Digital Studios and others (“South Park Studios”). South Park Studios responded with a motion to dismiss based on an affirmative fair use defense.  Although Circuit Judge Cudahy noted that courts should generally refrain from dismissing cases based on affirmative defenses, he wrote that the reason for this reticence is that defenses typically turn on facts that emerge during discovery and trial.  In this case, though, the district court ruled that only two pieces of evidence were needed to decide the question of fair use: the original WWITB video and South Park Studios’ parody.The district court granted South Park Studios’ motion and dismissed the case. The Seventh Circuit affirmed, noting that “[o]ne only needs to take a fleeting glance at the South Park episode” to determine that its use of the WWITB video is meant “to lampoon the recent craze in our society of watching video clips on the internet . . . of rather low artistic sophistication and quality.” Thus, fair use.Other commentators support the decision, noting that the focus of the parody is not the specific viral video, but rather that the parody is a commentary on society’s consumption of such Internet videos generally. It is worth noting that such arguments have not always found favor in the courts. For example, in the well-known Cat Not in the Hat! case, a district court found—and the Ninth Circuit affirmed—that a book entitled The Cat Not in the Hat! A Parody by Dr. Juice was not shielded as fair use. The book “mimic[ked] the distinctive style” of a Dr. Seuss book, using repetitive, simple rhymes to tell the story of the O.J. Simpson double-murder trial. The general idea is that a use is not fair if, in the words of the U.S. Supreme Court in Campbell v. Acuff-Rose, the alleged infringer uses the original work solely “to get attention or to avoid the drudgery in working up something fresh.” In Brownmark, it seems, the Seventh Circuit viewed South Park’s parody as something more than mere drudgery avoidance.Going forward, Brownmark changes little, if anything, with respect to the substance of the fair use analysis. But Brownmark does show that courts may—in at least some fair use cases and at least in the Seventh Circuit—grant a motion to dismiss prior to discovery. While Brownmark involved a seemingly easy fair use case in the defendants’ favor, it will be interesting to see whether future courts will grant motions to dismiss where the fair use analysis is less obvious. In any event, copyright infringement plaintiffs should be aware that the road to discovery where a defendant raises a fair use defense may not be quite as smooth as it used to be.

What, What (In the Court): South Park Studios Shielded by Fair Use for Viral Video Parody

The Seventh Circuit held recently in Brownmark Films, LLC v. Comedy Partners that, under certain circumstances, a trial court may dismiss a copyright infringeme

What, What (In the Court): South Park Studios Shielded by Fair Use for Viral Video Parody

We reported <a href="http://www.sociallyawareblog.com/2012/05/30/should-we-all-be-getting-the-twitter-jitters-be-careful-what-you-say-online-particularly-in-the-united-kingdom/">this past May</a> in our Socially Aware blog about efforts of law enforcement authorities in the United Kingdom to adapt existing laws to police potential offenses committed via social media.  The UK government has <a href="http://www.huffingtonpost.co.uk/2012/06/12/defamation-bill-moves-to-unmask-trolls_n_1588793.html">just announced</a> proposals that will make it easier to identify people who abuse social media.The UK government’s somewhat surprising announcement came just after a <a href="http://www.guardian.co.uk/technology/2012/jun/08/facebook-revealing-identities-cyberbullies">recent case</a> that highlighted the problem that some law enforcement authorities seem to be having in deciding when to get involved.  That case also illustrated that the social media industry could be quicker to self-police, were it not for the fear of legal action.  In part, the UK government’s move is a reaction to the need—from both the police and the social media industry—for a better legal framework in which to take action against social media abusers.In the recent case, a woman who had been targeted by trolls with a campaign of online abuse <a href="http://www.dailymail.co.uk/news/article-2156365/Nicola-Brookes-victim-internet-trolls-wins-High-Court-backing-reveal-identities-targeted-her.html">won a UK High Court order</a> requiring <a href="http://www.facebook.com/">Facebook</a> to reveal the names, emails and IP addresses of the individuals behind the abusive messages.  Interestingly, the court action began only after the woman’s local police force refused to take action and was undertaken with the apparent full support of Facebook.The campaign of harassment against Nicola Brookes began when she posted a comment on Facebook in support of a contestant on the UK talent show “<a href="http://en.wikipedia.org/wiki/The_X_Factor_(UK)">The X Factor</a>”.  Immediately after Ms. Brookes had made the posting, she was subject to a campaign of harassment by anonymous <a href="http://en.wikipedia.org/wiki/Troll_(Internet)">Internet trolls</a> who targeted her Facebook account, set up a fake Facebook profile in her name using her picture, and posted explicit comments that, among other things, branded her a pedophile.Ms. Brookes quickly became frustrated by the lack of action from the <a href="http://www.sussex.police.uk/">Sussex Police</a> and decided to take matters into her own hands by initiating a criminal suit against the anonymous trolls via private prosecution.  In order to do so, however, she needed to know who the perpetrators were.  To get that information, she applied to the High Court for a procedural order under UK law known as a <a href="http://www.bailii.org/uk/cases/UKHL/1973/6.html">Norwich Pharmacal Order</a>—which the court quickly granted. A Norwich Pharmacal Order requires the person to whom it is directed (in this case, Facebook) to disclose particular documents or data.  Usually, Norwich Pharmacal Orders are targeted at individuals or companies who are somehow involved in wrongdoing, whether innocently or not, but are unlikely to be a party to a potential proceeding.  These types of orders are often used to identify the correct defendant in an action or to obtain information to bring a suitable claim.Facebook <a href="http://www.guardian.co.uk/technology/2012/jun/08/facebook-revealing-identities-cyberbullies">is supportive</a> of Ms. Brookes’ court order application.  Facebook reportedly shares information such as IP addresses and basic subscriber information when there is legal justification and an obligation to do so; however, given that it receives similar requests frequently, <a href="http://www.facebook.com/full_data_use_policy">its policy</a> is that all demands for information must be backed up by a court order.Facebook will be required to release the information as soon as all of the <a href="http://www.facebook.com/full_data_use_policy#otherthings">procedural requirements</a> (which include serving the court order on Facebook at its U.S. headquarters) have been complied with.  <a href="http://www.guardian.co.uk/technology/2012/jun/08/facebook-revealing-identities-cyberbullies">In a recent statement</a>, the company noted:  “There is no place for harassment on Facebook, but unfortunately a small minority of malicious individuals exist online, just as they do offline.  We respect our legal obligations and work with law enforcement to ensure that such people are brought to justice.”In a separate case, on June 11, 2012, a British court handed down a suspended <a href="http://www.dailymail.co.uk/news/article-2157690/Louise-Mensch-internet-troll-Frank-Zimmerman-spared-jail-vile-tweets.html">jail sentence</a> to an Internet troll who posted abusive tweets threatening a British member of parliament.The cases of Ms. Brookes and Ms. Mensch are merely the latest in <a href="http://www.sociallyawareblog.com/2012/05/30/should-we-all-be-getting-the-twitter-jitters-be-careful-what-you-say-online-particularly-in-the-united-kingdom/">a series of UK cases</a> involving lawsuits arising as a result of social media use. The UK government, as keen as any set of politicians to latch on to a populist bandwagon, reacted to this recent spate of cases.  As luck would have it, a draft Defamation Bill is already making its way through the UK legislative system—and rapidly. The government has announced an <a href="http://www.bbc.co.uk/news/technology-18404621">amendment </a>that will require websites to identify people who have posted defamatory messages online and will give victims of Internet trolls a right to know who is behind malicious messages, without the need for costly legal battles.  The new laws will apparently offer a defense to defamation claims to any online provider that identifies the author of defamatory material when requested to do so.It is far from clear, however, how the proposed legislation will work.  In theory, the power to compel disclosure will be balanced by measures to prevent false claims, but operators of websites and other social media platforms will also be concerned with not being placed in the position of having to make subjective judgments as to what meets the takedown or disclosure criteria.  There are further concerns that the legislation will find it hard to distinguish between abusers and genuine whistleblowers; and some futher doubt exists as to how the laws will apply to non-UK operated websites and online platforms.

Autodesk

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Intel

ITworx

lastminute.com

NYSE-listed health tech company

One of UK's largest public EV charging networks

Phoenix Group

Telenor

UK Border Agency

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Alistair Maughan co-leads Morrison & Foerster's European Technology & Commercial Practice.

Alistair Maughan

Alistair advises on the deployment of new technology platforms involving, for example, the internet of things, AI and machine-learning, and blockchain and distributed ledger technology.

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Tracking the Trolls: A “Twitter Jitters” Update

Tracking the Trolls:  A “Twitter Jitters” Update

We reported this past May in our Socially Aware blog about efforts of law enforcement authorities in the United Kingdom to adapt existing laws to police potenti

In two recent decisions issued within a day of each other, two influential federal courts limited the scope of three important federal laws used to prosecute criminal conduct involving computers.  On April 10, 2012, the Ninth Circuit limited the scope of criminal liability for prosecutions under the Computer Fraud and Abuse Act, and on the following day the Second Circuit sharply limited the scope of the National Stolen Property Act and the Economic Espionage Act of 1996.  Together, these decisions indicate a reluctance to accept prosecutors’ expansive views of the reach of federal criminal laws with respect to computer usage, and the Ninth Circuit’s decision in particular may have far-reaching implications for the enforceability of website terms of service and employee policies in the civil context.The Ninth Circuit’s decision was issued <a href="http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf">en banc in United States v. Nosal</a> upholding the district court’s dismissal of David Nosal’s indictment for violations of the <a href="http://www.law.cornell.edu/uscode/text/18/1030">Computer Fraud and Abuse Act (“CFAA”)</a>.  Nosal had worked for an executive search firm and left to start a competing business.  He convinced several of his former colleagues to help him by accessing and then transferring to him source lists, names, and contact information from the firm’s confidential database.  The former colleagues were authorized to access the database, but the firm had a policy forbidding the disclosure of confidential information.  The government charged Nosal with violating 18 U.S.C. § 1030(a)(4) by aiding and abetting the former colleagues in “exceed[ing] authorized access” to the firm’s computers with intent to defraud the firm.Nosal moved to dismiss the CFAA counts, arguing that the statute was meant to target hackers and not those who accessed a computer lawfully but then misused information obtained from such access.  The district court agreed, and the government appealed.  In a <a href="http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf">panel decision issued in 2011</a>, the Ninth Circuit reversed the district court, holding that an employee “‘exceeds access’ under § 1030 when he or she violates the employer’s computer access restrictions — including use restrictions.”  The en banc court found otherwise, holding that “‘exceeds authorized access’ in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.” (Emphasis in original.)  To hold otherwise, the court reasoned, would make federal crimes out of “minor dalliances” like playing games or shopping online, if such activities were prohibited by an employer’s computer-use policy.  The court observed:  “Employer-employee and company-consumer relationships are traditionally governed by tort and contract law,” and to interpret the CFAA to apply to use restrictions “allows private parties to manipulate their computer-use and personnel policies so as to turn these relationships into ones policed by the criminal law.”  This would implicate “[s]ignificant notice problems.”  Although the government argued that it would not prosecute minor violations of the law, the court found that “we shouldn’t have to live at the mercy of our local prosecutor.”The Second Circuit’s decision in United States v. Aleynikov, issued on April 11, 2012, limits the reach of computer crime prosecutions under the National Stolen Property Act (“NSPA”) and the Economic Espionage Act of 1996 (“EEA”).  Sergei Aleynikov was convicted of violating both acts based on his theft and transfer of his company’s proprietary source code.  Aleynikov was a computer programmer at Goldman Sachs, where he developed source code for the company’s proprietary high-frequency trading (“HFT”) system.  Goldman’s policies bound Aleynikov to keep the firm’s proprietary information confidential and barred him from taking or using it when his employment ended.  Aleynikov accepted an offer from a new company that was looking to develop its own HFT system.  On his last day at Goldman, Aleynikov uploaded source code for Goldman’s HFT system to a server in Germany, which he then downloaded to his home computer for use at his new job.Aleynikov was sentenced to 97 months in prison.  He appealed, arguing that the district court should have dismissed his indictment for failure to state an offense.  The Second Circuit reversed his conviction on both counts, finding that his conduct did not constitute an offense under either statute.  (Aleynikov has also been charged with a criminal violation of the CFAA, but the district court had dismissed that charge on the ground that “authorized use of a computer in a manner that misappropriates information is not an offense” under the act.  This ruling predates the similar en banc Nosal decision discussed above, and the government did not appeal the ruling.)The NSPA criminalizes transmittal of a stolen “good” in interstate or foreign commerce.  The Second Circuit held that source code is not a “good,” and therefore, “the theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA.”  The court “decline[d] to stretch or update statutory words of plain and ordinary meaning in order to better accommodate the digital age.”  Significantly, the court noted that a different conclusion might apply if the stolen source code had been removed from Goldman’s premises on a tangible item, like a CD or flash drive, instead of having been stolen through uploading to an off-premises server.The EEA prohibits the unauthorized downloading, uploading, transmitting, or conveying of trade secrets related to or included in a product that is produced for or placed in interstate or foreign commerce, with the intent to convert the trade secret, while intending or knowing that the offense will injure the owner of the trade secret.  On this count, the Second Circuit held that Goldman’s HFT system was neither “produced for” nor “placed in” interstate commerce because Goldman had no intention of selling or licensing the system and, in fact, “went to great lengths to maintain the secrecy of its system.”Although neither the NSPA nor EEA provides for a private right of action, we think it is possible the rationales of these decisions could influence civil litigation involving misuse of an employer’s computer system, including, in particular, civil litigation under the CFAA based on violations of website terms of service or employee policies.  For examples of previous such cases, see, e.g., <a href="https://www.courtlistener.com/opinion/2488152/america-online-inc-v-lcgm-inc/">Am. Online, Inc. v. LCGM, Inc.</a> and <a href="https://caselaw.findlaw.com/us-1st-circuit/1004912.html">EF Cultural Travel BV v. Explorica, Inc.</a> In most of these cases, it appears that the defendant was authorized to access the website or system in question, but misappropriated the data on those websites or systems.  In addition to limiting criminal exposure, the Ninth Circuit’s interpretation of “exceeds authorized access” in Nosal may be construed to undermine this basis for a civil suit.  Watch these pages for further reports on these issues.

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Computer Crime Prosecutions Face New Difficulties

Computer Crime Prosecutions Face New Difficulties

In two recent decisions issued within a day of each other, two influential federal courts limited the scope of three important federal laws used to prosecute cr

As a result of her recent Socially Aware blog post <a href="https://www.sociallyawareblog.com/2012/05/21/whats-not-to-like/">What’s Not to Like</a>, our contributor Debbie Rosenbaum has been interviewed by LXBN TV regarding Bland v. Roberts, the recent (and controversial) federal court decision holding that “liking” a Facebook page does not constitute protected speech under the First Amendment.  Click below to watch the interview.<iframe loading="lazy" align="center" src="https://www.youtube-nocookie.com/embed/zpvmFJSvneE" width="770" height="450" frameborder="0" scrolling="no" style="width: 770%; height: 450;" title="iframe"></iframe>

Interview with Debbie Rosenbaum regarding Bland v. Roberts

As a result of her recent Socially Aware blog post What’s Not to Like, our contributor Debbie Rosenbaum has been interviewed by LXBN TV regarding Bland v. Rober

Interview with Debbie Rosenbaum regarding Bland v. Roberts

History is littered with examples of the law being slow to catch up with the use of technology.  Social media is no exception.  As <a href="https://www.sociallyawareblog.com/">our Socially Aware blog</a> attests, countries around the world are having to think fast to apply legal norms to rapidly evolving communications technologies and practices.Law enforcement authorities in the United Kingdom have not found the absence of a codified “social media law” to be a problem.  They have applied a “horses for courses” approach, and brought prosecutions or allowed claims under a range of different laws that were designed for other purposes.  Of course, this presents problems to users, developers and providers of social media platforms, who can be by no means certain which legal standards apply.The use of <a href="http://www.twitter.com/">Twitter</a> and other forms of social media is ever increasing and the attraction is obvious—social media gives people a platform to share views and ideas. Online communities can bring like-minded people together to discuss their passions and interests; and, with an increasing number of celebrities harnessing social media for both personal and commercial purposes, Twitter often provides a peek into the lives of the rich and famous.As an increased number of Twitter-related cases have hit the front pages and the UK courts, it is becoming increasingly clear that, in the United Kingdom at least, the authorities are working hard to re-purpose laws designed for other purposes to catch unwary and unlawful online posters.It’s typically hard to argue that someone who maliciously <a href="http://en.wikipedia.org/wiki/Troll_%28Internet%29">trolls</a> a <a href="http://www.facebook.com/">Facebook</a> page set up in the memory of a dead teenager or sends racist tweets should not be prosecuted for the hurt they cause.  But in other cases, it may not be so clear-cut—how does the law decide what is and what is not unlawful?  For example, would a tweet criticizing a religious belief be caught?  What about a tweet that criticizes someone’s weight or looks?  Where is the line drawn between our freedom of expression and the rights of others?  Aren’t people merely restating online what was previously (and still is) being discussed down the pub?A range of UK laws is currently being used to regulate the content of tweets and other online messages.  At the moment, there is no particular consistency as to which laws will be used to regulate which messages.  It appears to depend on what evidence is available.  As a spokesman of the <a href="http://www.cps.gov.uk/">Crown Prosecution Service</a> <a href="http://www.guardian.co.uk/technology/2012/mar/27/twitter-racism-taking-on-twacists">remarked</a>, “Cases are prosecuted under different laws.  We review the evidence given to us and decide what is the most appropriate legislation to charge under.”Communications Act 2003In 2011, there were 2,000 prosecutions in the United Kingdom under <a href="http://www.legislation.gov.uk/ukpga/2003/21/section/127">section 127 of the Communications Act 2003</a>. A recent string of high-profile cases has brought the Communications Act under the spotlight.Under section 127(1)(a), a person is guilty of an offense if he sends “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network.  The offense is punishable by up to six months’ imprisonment or a fine, or both.So… what is “grossly offensive” or “indecent, obscene or menacing”?In <a href="http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060719/collin.pdf">DPP v Collins [2006]</a>, proceedings were brought under section 127(1)(a) in relation to a number of offensive and racist phone calls made by Mr. Collins to the offices of his local Member of Parliament.  The House of Lords held that whether a message was grossly offensive was to be determined as a question of fact applying the standards of an open and just multiracial society, and taking into account the context of the words and all relevant circumstances.  The yardstick was the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message set in its particular context.  The test was whether a message was couched in terms that were liable to cause gross offense to those to whom it related.  The defendant had to have intended his words to be grossly offensive to those to whom they related, or to have been aware that they may be taken to be so.  The court made clear that an individual is entitled to express his views and to do so strongly, however, the question was whether he had used language that went beyond the pale of what was tolerable in society.  The court considered that at least some of the language used by the defendant could only have been chosen because it was highly abusive, insulting and pejorative.  The messages sent by the defendant were grossly offensive and would be found by a reasonable person to be so.Proceedings are also being brought under section 127(1)(a) for racist messages.  In March 2012, Joshua Cryer, a student who <a href="http://www.telegraph.co.uk/technology/twitter/9081345/Law-student-Joshua-Cryer-denies-racially-abusing-Stan-Collymore.html">sent racially abusive messages on Twitter</a> to the ex-footballer, Stan Collymore, was successfully prosecuted under section 127(1)(a) and <a href="http://www.huffingtonpost.co.uk/2012/03/21/joshua-cryer-newcastle-university-stan-collymore-racist-tweet_n_1369478.html">sentenced to two years’ community service</a> and ordered to pay £150 costs. (However, interestingly, Liam Stacey, who was <a href="http://www.dailymail.co.uk/news/article-2121003/Liam-Stacey-jail-tweeting-abuse-Fabrice-Muamba.html">sentenced</a>  to 56 days’ imprisonment for 26 racially offensive tweets in relation to Bolton Wanderers footballer <a href="http://www.guardian.co.uk/football/2012/mar/18/fabrice-muamba-heart-two-hours">Fabrice Muamba</a>, was charged with racially aggravated disorderly behavior with intent to cause harassment, alarm or distress under <a href="http://www.legislation.gov.uk/ukpga/1998/37/section/31">section 31 of the Crime and Disorder Act 1998</a>, rather than under the Communications Act).Similarly, religious abuse is also being caught under the Act.  In April 2012, Amy Graham, a former police cadet, was <a href="http://www.liverpoolecho.co.uk/liverpool-news/local-news/2012/04/28/former-upton-police-cadet-pleads-guilty-to-anti-muslim-twitter-rant-100252-30856474/">charged</a> under the Communications Act for abusive anti-Muslim messages posted on Twitter.  She awaits sentencing.These cases may appear relatively clear-cut, but there have been some other high-profile cases where the grounds for prosecution appear more questionable.In April 2012, John Kerlen was found guilty of sending tweets that the court determined were both grossly offensive and menacing, for posting a picture of a Bexley councilor’s house and asking: “Which c**t lives in a house like this. Answers on a postcard to #bexleycouncil”; followed by a second tweet saying: “It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual s**t.”  He <a href="http://www.independent.co.uk/news/uk/crime/abusive-tweeter-john-graham-kerlen-avoids-jail-7728891.html">avoided a jail sentence</a> —instead being sentenced to 80 hours of unpaid labor over 12 months, asked to pay £620 in prosecution costs, and subjected to a five-year restraining order.  Were these messages really menacing or grossly offensive?  If he was going to be prosecuted, was the Communications Act the appropriate law or should he have been prosecuted for incitement to cause criminal damage (if he was genuinely inciting others to post feces) or for harassment?Even more controversial is the case that has become widely known as the “Twitter joke trial.” Paul Chambers was prosecuted under section 127(1)(a) for sending the following tweet: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!”  He appealed against his conviction to the Crown Court.  In dismissing the appeal, the judge said his tweet was “menacing in its content and obviously so.  It could not be more clear.  Any ordinary person reading this would see it in that way and be alarmed.” This was despite the fact that <a href="http://www.robinhoodairport.com/">Robin Hood Airport</a> had classified the threat as non-credible on the basis that “there is no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.”  The case attracted a huge following among Twitter users, including high profile users such as Stephen Fry and Al Murray.  Following a February 2012 appeal to the High Court, it was <a href="http://www.theregister.co.uk/2012/05/28/paul_chambers_twitter_joke_trial_appeal/">announced on May 28</a> that the High Court judges who heard the case were unable to reach agreement, and that therefore, a new appeal would need to be re-heard by a three-judge panel. Such a “split decision” is extremely unusual.  No date has yet been set for the new hearing.Malicious Communications Act 1988Cases are also being brought under <a href="http://www.legislation.gov.uk/ukpga/1988/27/section/1">section 1 of the Malicious Communications Act 1988</a>. Under this Act, it is an offense to send an electronic communication that conveys a message that is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person.In February 2012, <a href="http://www.safc.com/page/Home">Sunderland</a> fan, Peter Copeland, received a four-month suspended sentence after posting racist comments on Twitter aimed at <a href="http://www.nufc.co.uk/page/Home">Newcastle United</a> fans.  More recently, a 13th person was arrested by police investigating the alleged naming of a rape victim on social media sites after <a href="http://www.sufc.co.uk/page/Welcome">Sheffield United</a> Striker, Ched Evans, was jailed for raping a 19-year-old woman.  The individuals involved have been arrested for offenses under various laws, including the Malicious Communications Act.What’s next?So, what’s next for malicious communications?  Perhaps sexist remarks.Earlier this month, Louise Mensch, a Member of Parliament, highlighted a variety of sexist comments that had been sent to her Twitter account.  In response to this, Stuart Hyde, who is the Chief Constable of <a href="http://www.cumbria.police.uk/">Cumbria Police</a> and the national e-crime prevention lead for the Association of Chief Police Officers, remarked that the comments made to Mensch were “horrendous” and “sexist bigotry at its worst.”  He referred to the offenses available to the authorities:  “We are taking people to court. People do need to understand that while this is a social media it’s also a media with responsibilities and if you are going to act illegally using social media expect to face the full consequences of the law. Accepting that this is fairly new, even for policing … we do need to take action where necessary.”  Whether any of these comments will lead to charges remains to be seen.In another example of online abuse, Alexa Chung, the TV presenter, recently <a href="http://nymag.com/daily/fashion/2012/04/alexa-chung-defends-her-weight-on-instagram.html">received nasty comments</a> criticizing her weight in response to some <a href="http://www.instagram.com/">Instagram</a> photos she had posted on Twitter.  She removed the photos in response, but is it possible that these kinds of messages could be considered grossly offensive and therefore unlawful?We will have to wait and see what other cases are brought under the Communications Act and Malicious Communications Act and what balance is ultimately struck between freedom of expression and protecting individuals from receiving malicious messages.  However, it is not just criminal laws relating to communications that could apply to online behavior.  Recent events have also led to broader legislation such as the Contempt of Court Act and the Serious Crime Act being considered in connection with messages posted on Twitter and other social media services.Contempt of Court Act 1981If someone posts information online that is banned from publication by the UK courts, they could be found in contempt of court under the <a href="http://www.legislation.gov.uk/ukpga/1981/49">Contempt of Court Act 1981</a> and liable for an unlimited fine or a two-year prison sentence. However, as we saw in 2011, the viability of injunctions in the age of social media is questionable.  When the footballer, Ryan Giggs, requested that Twitter hand over details about Twitter users who had revealed his identity in breach of the terms of a “<a href="http://www.dailymail.co.uk/news/article-1389841/Ryan-Giggs-named-Parliament-cheating-super-injunction-star.html">super-injunction</a>,” hundreds of Twitter users simply responded by naming him again.  No users have, to date, been prosecuted for their breach of the injunction.In another high profile case, in February 2012, the footballer, <a href="http://www.joeybarton.net/">Joey Barton</a>, was examined for contempt of court when he <a href="http://www.dailymail.co.uk/news/article-2096920/Joey-Barton-defiant-John-Terry-tweet-storm-Ill-jail-free-speech.htm">tweeted some comments</a> regarding the trial of footballer, John Terry. Under the Contempt of Court Act 1981, once someone has been arrested or charged, there should be no public comments about them which could risk seriously prejudicing the trial.  In that case, it was found that Barton’s comments would not compromise the trial and therefore he was not prosecuted for his comments.Serious Crime Act 2007Last summer’s riots in Englandled to Jordan Blackshaw and Perry Sutcliffe-Keenan being found guilty under sections 44 and 46 of the <a href="http://www.legislation.gov.uk/ukpga/2007/27/contents">Serious Crime Act</a> and jailed for having encouraged others to riot. Blackshaw had created a Facebook event entitled “Smash d[o]wn in Northwich Town” and Sutcliffe-Keenan had invited people to “riot” in Warrington.  Both men were <a href="http://www.guardian.co.uk/uk/2011/aug/16/facebook-riot-calls-men-jailed">imprisoned for four years</a>.Defamation Act 1996Of course, posting controversial messages online is not just a criminal issue.  Messages can also attract civil claims for defamation, under the <a href="http://www.legislation.gov.uk/ukpga/1996/31/contents">Defamation Act 1996</a>.In March 2012, in the first UKruling of its kind, former New Zealandcricket captain, Chris Cairns, won a defamation claim against Lalit Modi, former <a href="http://www.iplt20.com/">Indian Premier League</a> (IPL) chairman, for defamatory tweets.  Mr. Modi had tweeted that Mr. Cairns had been removed from the IPL list of players eligible and available to play in the IPL “due to his past record of match fixing.”  Mr. Cairns was <a href="http://www.bbc.co.uk/news/uk-17512027">awarded damages</a> of £90,000 (approximately £3,750 per word tweeted).ConclusionAs in other countries, a whole host of UK laws that were designed in an age before social media—even, in some cases, far before the Internet as we know it—are now being used to regulate digital speech.  Digital speech, by its very nature, has permanent records that are easily searchable, making the police and the prosecution’s job much easier.Accordingly, these types of cases are only going to increase, and it will be interesting to see where UK courts decide to draw the line between freedom of expression and the law.  One would hope that a sense of proportionality and common sense will be used so that freedom of expression offers protection for ill-judged comments said in the heat of the moment or “close to the knuckle” jokes, while ensuring that the victims of abusive and threatening trolls are rightly protected.  In the meantime, users need to be very careful when tweeting and posting messages online, particularly in terms of the language they use.  Tone can be extremely difficult to convey in 140 characters or less.One has to feel sorry for the UK holiday makers who were barred in January 2012 from entering the United States for tweeting that they were going to “destroy America” (despite making clear to the U.S. airport officials who detained them that “destroy” was simply British slang for “party”).  No doubt they will think twice before clicking that Tweet button in the future.

Should We All Be Getting the Twitter “Jitters”?  Be Careful What You Say Online (Particularly in the United Kingdom)