This is a notable entry from the Justis International Law & Technology Writing Competition 2019 in the category of Social Media, Technology and the Law, by Conor Courtney of Trinity College Dublin. Find out more about the competition, the shortlist and winning articles here.
Social media platforms enable community levels of communication, sharing, and interaction, however, there lies a darker side to the use of social media, and this essay hopes to examine some of the offences that have been, or could be, committed through these platforms.
The advancement of social network-based technology has, in recent times, marked the intersection between novel technology and novel legal debate. Although most of the focus of these sites in the news tend to emphasise questions about the suitability of posts, queries around fake news, or international data breach issues, there are more nuanced legal considerations which should be considered when viewing social media platforms.
For instance, criminal law, notably convictions of assault and murder, has recently been at the centre of social media concerns. It is simple to overlook the potential for criminal charges through the use of Twitter, and yet, such realities have occurred. Early in 2017, the world saw possibly the first instance of a tweet being used as a form of violent intent, based on the gif attached to it. John Rayne Rivello, 29, of Salisbury, Md., was charged with aggravated assault through his act of sending a tweet to journalist Kurt Eichenwald. This case marked the first example of a gif being used as a ‘deadly weapon’, as the gif in question involved flashing imagery, which was intentionally included to trigger Eichenwald’s epilepsy, in the hopes of causing harm. This seems to be a relatively undeniable interpretation of the law. One can easily see parallels to similar acts of transitory weaponry, as is seen in foregone cases which relied on the postal system as a delivery method for harmful substances, such as anthrax. Should one have used mail to intentionally send an allergen to an individual, in the hopes of triggering fatal anaphylactic shock, then there would likely be a similar response.
Technology used in Manslaughter offences
The concept of social media being used to harm others has also had a relatively long-established means of embodying a greater physical sense. This has come through the modern practice known as ‘swatting’. Through this act, individuals make unsubstantiated claims to the police, alleging that their intended target is committing a serious offence at their address, in an attempt to have the armed forces aggressively attack the individual, sometimes with fatal consequences. One such fatal event occurred within the last twelve months. Andrew Finch, a twenty-eight-year-old male, became a victim of swatting. The technological element to this case was quickly overlooked; the violence had a direct cause and effect, and the existence of a technological shield did nothing to prevent justice from occurring, resulting in manslaughter charges. This is what we must consider moving forward. Technology was once considered a unique and distinct aspect to our lives, but it has now become so ingrained in society that it is no longer the alien other, but the comfortable stable.
However, it must be noted that the legal implications of social media and technology offences are not limited to criminal or violent acts. Interestingly, as these sites almost exclusively revolve around speech and intellectual property, there has been a slow reaction to viewing social media as a fundamental source for libel, or defamation. Perhaps this concept is not a heavy presence due to the nature of social media, which effectively encourages posts which are based in opinion, or hyperbolic sense, both of which are protected from defamation. Although there are likely many cases where online comments have led to defamation convictions, they are becoming increasingly common, Elon Musk’s tweets come to mind. There have been recent advancements which have outlined the relatively simple threshold for a potential online libel conviction. A recent case highlighted that as little as retweeting a comment could be sufficient to amount to defamation. This was seen in the recent case involving MSNBC host Joy Reid. Here, Reid retweeted a photo, claiming that the woman shown was involved in a racist rant, calling for her actions to be held in check. The interesting element was that Reid did not post the picture, she simply retweeted it, and commented. Her actions, however, may be enough to amount to libel, which opens the door to novel situations in which defamation might occur, which could extend, potentially, to likes, shares or comments, given the circumstances. Ed Klaris, a lawyer who runs a New York-based media and intellectual property firm, explains:
“The traditional rules of re-publication apply. You as a tweeter are very much a publisher,” says Klaris. He likens the situation to a newspaper that prints a letter to the editor that contains false and defamatory information. In such a case, the target of the letter can sue both the letter writer and the newspaper”.
This thin line between free speech and slander becomes more complicated through the common use of automated bots, which may unintentionally promote such comments.
Online Sexual Offences
Of course, a central set of offences which affect social media are those related to sexual harassment. This concept covers areas of offences such as online harassment and bullying, online stalking, and practices such as revenge porn and ‘upskirting’. Many of these practices involve intentional humiliation, based around sexual images and the use of technology. In the cyber sphere, where it has been argued that words are not written with a pencil, but with ink, these events are difficult to prevent and impossible to undo. Further offences have yet to be recognised, with many suggesting that unsolicited sexually explicit pictures should amount to a sexual offence. This area, however, is difficult to adapt, as Mark Rasch explains, “Computer crimes have analogues in traditional crimes like trespass, larceny, destruction of property, but these common law concepts are inadequate to proscribe the new, high technology crimes”.
To conclude, it is worth noting that social media is a modern tool, and unfortunately the legal industry has a long-established nature of being slow to adapt. Many of the criminal prosecutions described above are attempting to right wrongs through the logic and nomenclature of traditional crimes, and although often practicable, many of these approaches fall short of the protections needed. Any advances in technology will result in varied approaches for committing criminal offences, and although it is unlikely that the law could ever adapt as quickly as technology, it is necessary to outline the issues surrounding these crimes. Social media’s power comes from its ability to unite, to communicate, and to share, and in this way it brings people together as a form of technological community. However, with any community there will be those who use the platform to commit serious offences, and it remains crucial that those people are held accountable for their actions online, just as they would be in the real world.
Conor Courtney is a final year undergraduate student, studying in Trinity College Dublin. His legal articles have appeared in The American Arbitration Association Dispute Resolution Journal, and DBS sSource. He is a Certified Data Protection Officer, and will be beginning his legal training in 2020.
 Travis M. Andrews, ‘Tweet that sent journalist Kurt Eichenwald into seizure considered ‘deadly weapon’ in indictment’ (The Washington Post, March 22, 2017).
 Alex Johnson, ‘Wichita officer who killed Andrew Finch in ‘swatting’ mistake won’t be charged’, (NBC News, April 13, 2018).
 Mark D. Rasch, The Internet and Business: A Lawyer’s Guide to the Emerging Legal Issues, (published by the Computer Law Association. Copyright © 1996 by The Computer Law Association, Inc.) Ch11 ‘Criminal Law and The Internet’.