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Free Speech & Expectations of Privacy on Social Media

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Offline kat

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A recently ruled upon case in the Canadian Courts (Ontario Court of Justice) acknowledged, and reiterated for the record (at least for Canada), a number of self-evident truths about Social Media;

- 1) individuals should not regard themselves as having conditional expectations of privacy when communicating openly with others on social media[1];

- 2) the use of locked, blocked or otherwise 'private' accounts carry no guaranties anything the account owner might say not reaching the person to, or about whom, such content were made/addressed[2];

- 3) in such circumstances as addressed in "2)" there are equally no guaranties the person directly or indirectly addressed won't respond; it is in fact their Right to do so if made aware, and they so choose[3];

- 4) Social media is the online equivalent of an open or public space, where discourse is available to, or accessible by, anyone - to 'speak' on such a platform is to do so in full knowledge that anyone can view what is said at any time[4].

Although this case went through the Canadian Courts, the general considerations noted by the Judge tend to hold true for much of the United States, UK and Europe, Countries where the same/similar Common Law principles are in effect.

The case was considered important for free speech/expression because the accusations at hand potentially meant comments and/or statements individual wrote or published online could make them liable for criminal prosecution - whilst there are a number of general considerations in most Common Law for 'hate' or 'abusive' speech or activities, for example content promoting terrorism, incitements to violence, posting offensive materials and so on, they generally only account for objectively egregious material, not common communication, i.e. everyday conversation.

In characterizing the latter, speech, as 'criminal' simply as a result of someone objecting to it, there was the genuine possibility of making ALL subjectively objectionable comments a person or persons don't like liable to prosecution. The test, as in the case, always tends to be whether there is an objective and reasonable (as observed by a disinterested third-party) real world risk of physical harm from a given action. If not, no criminal act as been committed[5].

[1] 'privacy' largely as it relates to the availability of, and consequences drawn from, the comments and statements individuals might make within the bounds of regional Governing Law.
[2] even if an individual is not communicated to/with directly, or is blocked from ever doing so, individuals not otherwise associated or affiliated with referenced content may pass it on - there are no reasonable expectations this cannot happen on an open platform.
[3] freedom of speech/expression, isn't just the freedom to speak in the abstract, but also the freedom to address accusations made about oneself - calling a person a name from a hidden account is not a guaranty the person referenced won't find out and respond in kind.
[4] generally speaking the User is usually made aware of the 'openness' of a platform at signup, a fact to which they agree in order to continue on to create an account. Access to content is subject to API access and/or mechanisms of (free) distribution.
[5] that is not to say that a Civil Action could not then be brought.