Law, blogging and social media – the text of a recent lecture

7 October 2022

Here is something a little different – this is a lecture I recently gave to students at my alma mater the University of Birmingham.  It has been amended and updated since delivery.

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Law, blogging and social media

A lecture by David Allen Green

Honorary lecturer in the public understanding of law at the University of Birmingham

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This is a lecture about legal blogging and legal commentary on social media: in general terms, that is non-commercial and usually free-to-read online commentary on cases and laws, often addressed to the interested general reader, as well as to specialists and students.

Blogging and social media generally is a phenomenon that has really come about in the last twenty years, though there are some precursors.  And legal blogging and legal commentary have become more prominent in the last fifteen years.  To an extent it complements the mainstream media, but it also compensates for the decline in specialised legal reporting and comment by the press and broadcasters.  And it can also do things which are innovative.

There has also been an increase in legal podcasting and law-related videos on YouTube and other media, and some of what I say will apply to that too, though I know less about that.

In one way, this rise of blogging and social media is a curious phenomenon, as of all subjects, you may think that the study and practice of law would not require any more words. For words are the stuffing of law, at least in the common law jurisdiction of England and Wales.

Words everywhere.  Words as the sources of law.  Words set out in legal instruments.   Words in the various written documents which can be put before that court or tribunal: pleadings and statements of case, and what Charles Dickens once listed sarcastically as “bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense”.

And in addition to all these formal words, we have all the further words of explanation, analysis and commentary. Libraries are packed with these words, in textbooks and journals.

Faced with all these words one can rather sympathise with Eliza Doolittle in My Fair Lady:

Words! Words! Words!
I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?

Lawyers are like the tormentors of Eliza Doolittle, for it seems that words are all that us blighters can do.

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So, whatever is lacking in the study and practice of law, it does not lack for words.  Indeed, you may think there are too many words already, and that there should be fewer and that no lawyer or legal commentator should produce any more words than is necessary.  You may well have a point.

But in the last twenty years there has been this new medium for the discussion of law: the internet.  The internet, in its World Wide Web incarnation, has given rise to instant international electronic publication.  And this, in turn, led to “web logs” – blogs – and social media platforms.  Millions of extra words about law have now been published, in addition to the many words that stuffed the law already.

Perhaps all the words published online about law in the last fifteen or so years are more than all the words in a comprehensive law library.  If so, nobody would be surprised.

In this lecture I shall set out features of blogging and social media generally, as well as some observations about legal blogging and the use of social media in particular.

I speak from the perspective of someone who came into law as use of the internet in legal practice became popular and then indispensable.

I remember the bemusement in 1997 when Massachusetts judge Hiller B. Zobel first published his judgment in the Louise Woodward case on the internet rather by any other means.

I also remember in 1998, as the first Research Associate at what was then (and should still be) the Law Faculty of this university, printing off the judgment in Pinochet (Number 1) on the day it was handed down, to give to an excited academic who was not used to obtaining a written judgment so quickly.

But by the time I was called to the Bar in 1999 and cross-qualified as a solicitor in 2001 there were computers with internet browsers on almost every desk of every law firm and every lawyer had an email address, though some partners insisted on emails being printed off and brought in by their secretaries.

And this lecture is is also from the perspective of someone with over twenty years’ experience in legal practice and about fifteen years’ experience of seeking to explain legal matters in blogs and social media, and in the mainstream media, as well as dealing with blogging and social media matters as part of my legal practice.

I was not one of the earliest legal bloggers, but I was early enough so that I had to code my posts in HTML, and I used my blog to help bring about libel reform by detailing the then-notorious illiberal and misconceived case of the British Chiropractic Association v Simon Singh.

I was also a fairly early user of Twitter, and I was the appeal solicitor in the once-famous “Twitter Joke Trial” case, where we spent three years explaining internet humour to the English judiciary, before the Lord Chief Justice laughed at one of our barrister’s jokes in court and we somehow won.

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So let us ask: “What is a blog, and what is it to blog?”

For before we can assess legal blogging, we need to understand the nature of blogging – and also the nature of social media, which some have called “micro-blogging” – and how blogs and blogging differ from other media.

Here you will see that the law of England and Wales has shied from providing a definition. According to the legisislation.gov.uk website, there is only one Act of Parliament which mentions the word “blog”.

Paragraph 8 of Schedule 15 of the Crime and Courts Act 2013 refers to a situation where a person publishes news-related material on a “multi-author blog”. The term “multi-author blog” is then defined as “a blog that contains contributions from different authors”.  But the wise parliamentary drafter did not attempt to define the word “blog”

The Oxford English Dictionary is a little more revealing. Blog as a noun is defined as “[a] frequently updated website, typically run by a single person and consisting of personal observations arranged in chronological order, excerpts from other sources, hyperlinks to other sites, etc.; an online journal or diary”.  And as a verb, to blog is “[t]o write or maintain a blog”.

I am a commentator, and not a lexicographer, and so I will not presume to offer a definition of a blog, which would enable you in every circumstance to determine what is a blog and what is not.

But what I can do is to set out some broad features of blogging, and how these features distinguish blogging and social media from other forms of media.

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The first feature of blogging seems banal, but it is crucial. It is that blogging is about writing for a screen – and thereby also about reading from a screen.

This quality distinguishes blogging from book-based and other paper-based media. Of course, one can print off blogposts to read, just as those partners printed off their emails.  Some bloggers have even published books based on blogposts.

But blogging – ultimately – is about what you can do with screens and keyboards, with a computer or mobile device.

This means that the writing of blogs is different from writing for publication in hard-copy. Instead of wanting the reader to turn a page, or to compare text on one page with another page, one aims for the reader to scroll, sometimes on a relatively small screen, and often not at a desk or in a library.

And writing readable, scrollable text is a skill. One law firm, Pinsent Masons, with its pioneering and highly regarded Out-Law site, even sensibly employs those from a journalistic background to write posts.

For the independent blogger or commentator on social media, an understanding of how your text or other material will be looked at by your readers should govern how you present it. Clutter is out.  And long paragraphs are out – though you do not need to go to the extreme of one-sentence paragraphs.  A reader is more likely to read ten paragraphs of ten words each, than a long paragraph of one hundred words.

And brevity is your friend. Long paragraphs can hide clumsy thinking.  With short paragraphs you must set out your propositions succinctly, with nowhere to hide.  It is a useful (if sometimes difficult) discipline.  But in this way good internet writing helps develop and sharpen your own thinking.

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A second, and also straight-forward, feature of blogging is that usually the blogger is a self-publisher.

This is in contrast to, say, a writer published in the mainstream media, where they are commissioned, edited (and sub-edited) and published by other people: for example, a newspaper or magazine weekly columnist who has to provide an 800 or 1200 word opinion every Thursday, regardless of whether their view warrants that many (or few) words, and whether Thursday is the best day to collect their thoughts.  A blogger can publish what they want when they want, and a blogger can also decide not to publish anything at all.

A blogger is often a person who, entirely by their own volition, publishes a thing to the world. Normally nobody has asked for it.  Nobody may even want it.  But the thing is published anyway.

Of course, this means that blogging and social media can be dominated by those who are more confident, perhaps over-confident. You are assuming that your views are worthy of publication.  This is the inescapable truth for anyone who publicly volunteers their views on the internet, and it actually covers both those who blog and those who criticise them.

But confidence does not necessarily mean that you have anything worth saying. Other things are needed.

And what offers a check and a balance to those who are over-confident is the engagement with the readers, if any, of what you publish.  For just as you are free to publish what you want, your readers will also be free to say what they think of what you write.   They may be on the other side of the moat, but they can be just as repellent (and brutal) as any gatekeeper.

Publishing to the world is relatively new thing.  Before the World Wide Web it was practically difficult for any person to personally publish a thing outside of those to whom they could deliver or post a physical copy, and it was almost impossible to broadcast, unless you went through a gatekeeper or, as with pirate radio stations, broke the law.

You could print off and distribute a leaflet or pamphlet, but there would be physical and logistical limits as to how much of what you created you could provide to others.  The gatekeepers – the newspapers, the publishing houses, the established broadcasting stations – controlled who had access to wider audiences.  The means of the publication and broadcast of media products were in the hands of the few, and not the many.

Now self-publication of blogs and social media posts has enabled those who are not able (or willing) to go through more traditional outlets for the dissemination of their insights.  Of course, there is no doubt that the lack of commissioning and editing (and sub-editing) stages mean that there is a great deal of dross being published on blogs and elsewhere on the internet.  But the lack of prior approval means that many – who would otherwise not find it easy to publish to the world – are able to do so, regardless of any gatekeepers.

One of the great early blogs was “Night Jack” which was by an anonymous then-serving police officer, describing the realities of policing. That blog deservedly won the Orwell prize.

More recently the “Secret Barrister” Twitter account and blog has provided an articulate and scathing ongoing account of the serious problems with the criminal justice system, as have other criminal barristers on social media such as Joanna Hardy-Susskind, who recently did a brilliant post on the criminal justice system.  The contribution of these front-line practitioners to the public debate on criminal justice has been invaluable.

There are other examples. One outstanding blogpost was written by the tax barrister Jolyon Maugham (who has since gone on to other things).  In that post he described what amounted to a racket: how senior tax counsel gave opinions that they could not have sincerely believed in support of elaborate tax avoidance schemes.  It was a brave and remarkable post, and it showed the value of informed legal blogging, putting something into the public domain that otherwise could not have been published, at least not easily.

But there is one serious problem that comes with self-publication – and it is a problem that those with a legal education and/or a legal qualification should be especially conscious.  A self-publisher is, in general terms, a publisher for the purposes of civil and criminal liability.  Qualified lawyers are also subject to their respective profession’s disciplinary code.  Many qualified solicitors will also be subject to media and social media policies of their firms.  And those applying for jobs may get their social media history searched and vetted by prospective employers.  Blogging and social media therefore are full of perils.

So bloggers and tweeters are, as self-publishers, free to blog and tweet as they wish, at least in there not being any third party approval before you press “send”. But this freedom includes the freedom to publish and be damned.

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A third quality is that blogging and social media is occasional and flexible.  As already mentioned, one can choose when to blog and tweet and when not to do so.  Unlike, say, a columnist in the mainstream media, bloggers and tweeters usually do not have to have a view on one topic every week which is exactly 800 words long.

So, if there is nothing to blog or tweet about, or you have not got anything worth saying, then you do not have to say anything. And if what you want to blog or tweet about needs only a few paragraphs, then there is no need to artificially inflate the word count.

Indeed, in my view, blogging is more akin to pamphleteering, than anything else in the traditional media. The pamphleteers were those with access to a press who wanted to publish and distribute their views and share information outside the usual media of their time.

Blogging and social media can also be speedy. When there is something worth saying, it can be part of the public debate very quickly.  For example, at the time of the then Prime Minister’s attempt to invoke Article 50 without legislation, a speedy blogpost by Nick Barber, Tom Hickman and Jeff King provided the legal basis for what then became a successful legal challenge by Gina Miller and others.

Another topical post was when the immigration lawyer Colin Yeo used the newly released Paddington the Bear film to frame an informative and engaging post about the rights of refugees and migrants. This post, which may be one of the best English legal blogposts ever published, used one event brilliantly to explain another issue dominating the news.

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The electronic nature of blogging provides its fourth feature, which also distinguishes it from many other forms of media. This quality is that a blog can link to other webpages.

A legal blogger can therefore link to their sources, especially to legal materials such as case reports and legislation. What other writers can only do indirectly with footnotes, a blogger can do directly with hyperlinks.  So blogging is not only pamphleteering, but pamphleteering with electronic footnotes.

This is especially useful for blogposts which comment on cases and other legal materials, and as such they allow instant comparison for the reader between the source and the commentary. Some blogs, such as the highly regarded SCOTUS blog in the United States, and the INFORRM media law blog in the United Kingdom, provide such sourced posts regularly, with multiple bloggers contributing.

Many readers of a blog will not actually click these links.  On my own blog, it is usually only 1% of visitors who will click on something in the post.  But it is the fact that the links are there, and so it is open for the curious or sceptical reader to check things out for themselves, which provides confidence and comfort.  Because a reader knows that they can click, they will often not feel any need to do so.

As courts and public authorities become more prone to publishing what can be called “primary” materials on the internet, then bloggers and those on social media can, in effect, be the first gloss of interpretation of those materials, in addition to and sometimes circumventing the mainstream media.

And sometimes, as with Adam Wagner’s extraordinary mastery of the confusing and shifting coronavirus regulations, the blogger can become an authoritative source of information even for the courts and public authorities themselves. In this way the volunteer blogger can become an important public service.

My first book, Emergency State, on the constitutional chaos caused by the pandemic, will be out on 13 October 2022!

You can pre-order it here:
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— Adam Wagner (@AdamWagner1) May 16, 2022

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The fifth feature of blogging and social media has already been mentioned. It is engagement: the immediate and candid (and public) relationship the online commentator will have with their readers and critics.

Of course, lawyers in practice and academics facing peer review also are used to adversarial situations: of people telling you that you are wrong, and worse.

But the intense and open nature of feedback on the internet means that if you are wrong, this will be pointed out swiftly and sometimes powerfully.

This engagement provides a discipline that helps you avoid foreseeable errors and lazy overstatement. Of course, some will still attack you anyway, for saying something which you did not say or did not mean; but writing for a critical audience concentrates the mind wonderfully on getting things as right as possible.

This constructive engagement is distinct from trolling: the vile or condescending messages that unfortunately are a characteristic of too many online exchanges.

A blogger or social media commentator who is seen as good and insightful will, by an informal process of internet peer review, gain a substantial following.  But such a reputation is precarious, and you are only one false move from unfollows and hostility.

Some blogs and Twitter accounts prompt comments and replies that are often more valuable than the original posting.  This is certainly true of my own law and policy blog, where the real value of the blog is invariably in the comments below the line, which take my head post as a starting point.

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Legal blogs and social media accounts are varied.

Some are veterans of mainstream media, such as the matchless Joshua Rozenburg.   One outstanding blog was by the late Sir Henry Brooke, a retired Lord Justice of Appeal, who can be fairly regarded as the best legal blogger the United Kingdom has ever produced, who turned to blogging as a hobby in retirement and mastered the medium immediately.

Some commentators are earnest, and some are less earnest.

Some blogs are by practitioners and legal academics, and some are by those with expertise even if they are not legally qualified.  And some are from student and those training to be lawyers.

There are blogs and social media accounts that do brilliant expositions of the black-letter law.  There are those that offer speedy case comments and critiques of formal documents.   My own blogging tends to take something legally related in the news and contextualise it and assess its practical significance.

Some blogs have become go-to sources for specialised insights into practical issues such as the civil litigation blog of Gordon Exall, or areas of practice such as the “Pink Tape” family law blog of Lucy Reed or the housing law blog “Nearly Legal”.

Some of the most valuable blogs are those which challenge and correct conventional and sloppy thinking by other commentators, for example the blogger Tony Dowson with his prescient post on the Attorney-General’s reference in the Colston matter – to which he has now provided an update.

Some blogs and resources are aimed at students, such as the valuable “Lawbore” work of Emily Albon.  And since the early days of use of internet by lawyers, Delia Venables has been an outstanding curator of links to available online legal resources.

Some of these blogs and social media accounts do what used to be done in mainstream media; others do things which were not really open for traditional media channels.  Some are anonymous, and others are emphatically and stridently self-promotional.  Some are connected to business and practice development, while others keep their practice and their commentary separate.

There is no one right way – no single model – of using a blog or a social media account for explaining, analysing or commenting on the law, but there is one golden rule.

The golden rule that all this online legal commentary should comply with is that, as far as you can, you should try to get the law right.

This means that you do not publish something about the law about which you are not confident; and it also means that if you are shown to be wrong (or to have overstated something) you respond accordingly.  Sometimes corrections and clarifications (and deletions) are painful, if not humiliating.  But they have to be done.

This duty is distinct from any professional duty as a legal adviser. Not all legal commentators are in legal practice – and some outstanding legal commentators are not even legally qualified.  Explaining and commenting on the law generally is not the same as advising a client in a particular situation.

But taking the law seriously, even if you seek not to take yourself too seriously, is essential.

And if you do not take the law seriously, then whatever you are doing (or think you are doing), you are not commenting on the law but are doing something else less useful instead.

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So why bother with legal blogs and social media?

For the reader – or lurker – there is the benefit of high-quality explanation, analysis and commentary that is either not elsewhere or is not easily obtained, and in a form that is easy to scroll and to click on links to open new tabs.  As long as you use your critical faculty, or rely on the critical faculties of those you respect, then you are giving yourself access to a great deal of first-rate legal information.

For those who are tempted to blog or tweet about the law, we salute you.  For every thing you may gain by doing so, there may be an equal and opposite reaction.  These can range from being simply ignored or being told that you are wrong, to creating professional and legal risk for yourself.  It is not to be done lightly, and many sensible student and lawyers choose not to comment online about the law.

But there is also something to be said for law students, law academics and legal practitioners doing what they can to promote the public understanding of law. For if lawyers do not do this, then it will be left to others, and so there will be caricatures instead of insights, and misinformation instead of information.

And so even if you do not provide online legal commentary yourself, you should help circulate good legal commentary when you come across it, for the benefit of others as well as for your own benefit.

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As we started with My Fair Lady we can also end with it.

In another scene of the film, Professor Henry Higgins turns on all the phonographic machines in his gorgeous library, and dials the machines louder and louder.  All we hear is a babble of voices, and of words.  Colonel Pickering covers his ears.

And this is how the internet and social media can seem to the uninitiated – a louder and louder babble of voices and words.  In response to this, we may wish to share the reaction of Colonel Pickering and cover our ears, or at least turn off our browsers and internet connections.

But it is not all noise of the same quality, for there are signals there too.  Not all words of equal value.  For just as there are good textbooks and bad textbooks, and well-reasoned judgments and less well-reasoned judgments, there is good and well-reasoned online legal commentary, and there is bad or less well-reasoned online legal commentary.

The task to develop is to be able to know the difference, and so benefit from – and even promote – this boon to the public understanding of law.

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