Social media, now that it has been invented, cannot be un-invented.
Anyone with the resources and inclination, and with access to the internet, can create a site where others can post things for others to see.
The technology is not, shall we say, rocket science.
Of course, there may come a time when few, if any, people will have the inclination to put together a social media platform.
There may also be a time when few, if any, people would want to devote scarce resources to providing such a platform.
And people may simply get bored.
Just because a communications technology exists, it does not mean that people will keep on using it.
And from pamphleteering to CB radio, and from carrier pigeons to telegrams, there are many examples of communications media that fell out of fairly widespread use.
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A barrister friend recently asked me what would be the next big platform after Twitter, as if I would somehow be in the know.
I said that it was unlikely there would be another single platform that would serve so many people in so many ways.
Already social media is beginning to fragment: LinkedIn has improved and so now not too bad for work-related (and thereby law-related) discussions; Mastodon is a haven for nerds and geeks and for those of us who know the difference; Facebook is the ghost of social media past, looking down at the graves of Friends Reunited and My Space; Instagram is for those who are impossibly beautiful or have impossibly beautiful pets; and TikTok can be as witty and informative as your preferences and the algorithms and the censors and the templates allow.
Why would people move (back) to a one size fits no-one single platform?
Especially just for typing in character-limited text boxes.
Twitter will (probably) not die, but it will never be the popular and splendid hive it once was.
And there will be those (of us) who will never quite abandon the platform.
But I cannot see why anyone would use it now, from scratch, given the other available platforms.
As the novelty of social media wears away, and it becomes just another form of communication, it will becomes as dated (or as timeless) as any other form of broadcast and publication.
It will no longer be special.
One interesting question, perhaps, is whether social media lasted long enough to fatally undermine more traditional broadcasters and publishers.
People will not be buying newspapers again in large numbers, and nor will they just want to read or watch what others schedule for them to read or watch.
There has been a fundamental shift in the means of broadcasting and publication, just as a Marxist would talk of a shift in the means of production and distribution.
And that shift also cannot be un-invented.
So something new is ahead, but we do not know what it is.
But whatever it is, it will probably not turn out according to expectations.
And so, at least in that one respect, it will be just like rocket science.
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Apologies for the gap over the Easter holidays: I took some extra time to rest and recuperate, but now I am back to normal.
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There has been another amusing (at least to outsiders) copyright case.
This one is about cute baby dragons.
You do not often get – usually earnest – case reports with illustrations like this:
And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:
This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.
This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.
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On the face of it, the case was weak – and two key weaknesses stand out.
First, there was no direct evidence whatsoever of copying.
Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.
In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.
The judge makes short-shrift of this:
“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.
The claimant was not even able to show that the work had been accessed:
“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”
The second – related – weakness is that dragons are a fairly generic subject.
One claimed similarity was that both the dragons breathed fire.
Well.
That is what dragons tend to do.
Had the two works, say, had fire-breathing baby wombats…
…then that would have been a remarkable coincidence which may need explanation.
But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.
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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.
In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.
This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.
Those cases – especially in the expensive High Court in London – that end with a public judgment are rare.
And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?
I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.
The defendants sought two remedies against the claimant.
The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:
“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”
The second was for what is called a publicity order:
“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”
If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.
The claimant’s use of publicity was very much a two-edged dragon-slayer.
And the claimant’s solicitors were also robust in their use of publicity:
Brandsmiths were back in the IPEC this week acting for @FayEvansAuthor in her copyright claim against John Lewis. The trial has concluded – we await judgement in due course from HHJ Melissa Clarke.
In the end, the claimant suffered adverse comment in the judgment:
“[the claimant] was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021. She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support. It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”
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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.
For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.
And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.
The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.
And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.
It was a daft case to bring.
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The judgment, however, is a useful document.
For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.
It also contains a very detailed analysis of the creative process an agency goes through to bring the final advert to life.
And how we can – and perhaps should – laugh at the irony of a newspaper that has attacked the Human Rights Act relying on that same Act when it is in its interests.
And there is nothing – absolutely nothing – wrong with Associated Newspapers seeking to do this.
For that is what the law of fundamental rights is for: they can be relied by (or sought to be relied on) by anybody.
There are useful rights for the media generally and journalists in particular under the Act.
And in other jurisdiction – notably the United States – the media and journalists are conscious of the fundamental rights they can rely on and can point to provisions that protect those rights.
The tragedy of the Human Rights Act is that despite it providing rights on which the media and journalists can rely, it is also despised in many in the media and journalism.
There is a mismatch between the reputation of the Act and the substance of the Act.
In the United States it would be unthinkable – even now – for any media organisation to call for the repeal of the First Amendment.
If only media organisations in the United Kingdom were as protective of Article 10 of the ECHR.
But there is a disconnect.
The newspaper in-house lawyers know about these provisions, and they will not hesitate to rely on the ECHR and the Human Rights Act when they can.
But across the office floor, there is not attachment to Article 10.
And that is part of the tragedy of the Human Rights Act.
Over twenty years since it took effect, it is still seen by so many in politics and the media as a partisan ornament rather than a practical instrument.
So entrenched is the dislike for the legislation it is tempting to support repealing the Act and replacing it with a new statute with exactly the same provisions but with a far less contentious name.
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What follows is an analogy – and all analogies in human affairs are inexact, and this is because no two situations involving people are identical absolutely.
If your mind starts racing along the lines of “they are not the same” – I agree, and I can think of many points of contrast too.
But bear with me, as the points of comparison may be interesting and even thought-provoking.
(And any comments underneath which just list differences will probably not get through moderation.)
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Imagine a court judgment – in a civil case where there has been a trial.
That there was a trial implies there was more than one side – and this in turn means that on at one least issue there was a difference of view.
Imagine reading that judgment.
The judge sets out the applicable law.
If there is a dispute as to the applicable law the judge sets out the submissions of the parties and why one view of the law was preferred instead of another.
(Sometimes a judge may provide their own view of the law and why that is to be preferred instead of the views of the parties.)
If there is a dispute as to the applicable facts then the judge will often set out why the evidence of one party was to be preferred to another.
If the factual dispute is complex then a good part of the judgment will be devoted to setting out why one set of facts was preferred to another – whether the evidence is witness evidence, or in the form of exhibits, or contested expert evidence.
And the judge is required – by the rules of natural justice no less – to decide the dispute impartially and having given each side a fair hearing.
What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.
This is because the obligations of impartiality and to hear each side go to how the judge approaches their task of exercising their judgement, rather than being reasons to not make any evaluation at all.
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Now let us turn to the BBC.
The BBC charter provides (among other things) that the purpose of the corporation is “to provide impartial news and information to help people understand and engage with the world around them: the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world. Its content should be provided to the highest editorial standards.”
The charter also states “the BBC should provide high-quality news coverage to international audiences, firmly based on British values of accuracy, impartiality, and fairness”.
And:
“The Mission of the BBC is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.”
Under section 319 of the Communications Act 2003, the Ofcom code must ensure “that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.
Section 320 of the same Act provides that the impartiality requirements include “the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters”.
The 2022 framework agreement between the government and the BBC provides that the BBC board should “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity”.
You get the message.
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The obligation of “impartiality” is as (ahem) enshrined in the instruments that govern and regulate the BBC as much as they are for any judge.
But impartiality does not necessarily mean facile both-sides-ism.
For these instruments also refer to the following (emphasis added):
“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions […]” (The Charter)
“the desirability of maintaining the independence of editorial control over programme content“ (section 319 of the Communications Act)
“The UK Government will continue to recognise and respect the editorial, creative and operational independence of the BBC, as set out in the Charter.” (2022 framework agreement)
And so on – there are many more.
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None of the instruments that govern and regulate the BBC provide that impartiality should mean an absence of editorial judgment.
Indeed, for like a judge who approaches their task with impartiality, the editor of a news programme also should exercise their editorial judgement with impartiality.
But there is still an exercise of judgement.
Impartiality – at least in the courtroom – does not mean that each side should be treated as being equally compelling.
And it should not in a newsroom either.
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There is a certain intellectual satisfaction to be had from watching an investigation done well – especially if you have watched it unfold in real time.
The work of tax lawyer and blogger Dan Neidle (who I know) on the remarkable matter of the tax affairs of Nadhim Zahawi is to be savoured.
Click on this link and read the chronology of how Neidle went step-by-step from the moment he thought something here just was not right.
(I remember in prehistoric times, when I had the same moment in the Nightjack and the Saudi prisons contract stories.)
I am not a tax lawyer, but I do know a bit about media law, and from that perspective I would like to add a couple of points about this story.
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There is nothing wrong, in principle, with any person asserting their legal rights – in defamation or anything else – if their legal rights are being infringed.
And so, until and unless the law of defamation is abolished, Zahawi and anybody else – including you – can seek to defend their – your – rights.
The problem here is not that there were libel letters, but that Zahawi’s legal strategy was flawed to begin with.
And so, faced with someone who knew what they were doing, the legal strategy first had to keep changing, before falling apart.
Moreover, lawyers’ letters can often be more revealing in what they do not say, rather than what they do say – and, if read carefully, even the most robust-seeming lawyers’ letter can expose the weakness of the position of a hapless client.
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We do not know the extent to which Zahawi’s lawyers were acting under instruction – and although lawyers can advise, it is always the client who decides.
And the wise litigation lawyer will already know that heading a letter “Not For Publication” can be often a triumph of hope over experience, especially when dealing with bloggers.
The aggressive legal strategy would have to have been approved by Zadawi.
And so the fault for Zahawi’s botched legal strategy must ultimately be with Zahawi.
He no doubt went to his lawyers instructing them to get the problem to go away, but by doing so, he made his own position far worse.
The gaps in the aggressive legal letters were telling, and they would have been better unsent.
The legal strategy adopted by Zahawi is as much a misjudgment as anything else in this matter.
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The fate of Zahawi is now in the realm of politics, not law.
He may survive, and the political circus may move on.
But whatever happens, the elegant and thorough blogging of Neidle will stand as an outstanding example of what can be done, over time, when an investigation is done well.
Bravo.
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One day at university, in about 1991, a religious friend said to me “you do realise we are still in the early history of the church?”
I am a non-militant atheist, but for some reason that statement has always stuck with me, as a perfect expression that things may seem very different from a longer perspective.
For us, things like the press and political parties were legacies of the nineteenth century.
In the United Kingdom, Fleet Street and party-based democracy came about at the same time, as often top-down means of communicating with and organising masses of people.
But they were only ever means to an end, and the notions of old print media and old-style political parties may not last that much longer than black-and-white films.
In the United States and France, Presidents have now been elected outside the regular party systems (though Trump was nominally a Republican); in the United Kingdom, the free-standing popular mandate of Brexit is destroying the governing party.
The conventional ways of organising people and information in a democracy may not last much longer.
What purpose is a political party, other than as a badge of convenience, when candidates can create and mobilise their own networks?
What purpose is a news outlet, other than as a hallowed name, when people can readily obtain the news and comment from other sources?
The laws of the land, which matched and regulated those old methods of doing thing will need to change fundamentally.
There is no point seeking to regulate media or political activity on the basis of what media and politics were like before the world wide web.
Getting rid of .gb may presume or preempt the outcome of possible constitutional changes in the next few years.
In the event there is Irish unification – which is possible in the next few years – then we would no longer be the United Kingdom of Great Britain and Northern Ireland.
And so we may then need .gb.
Though we could perhaps then be the United Kingdom of Great Britain, full stop.
And so still be .uk.
At least in our own minds.
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But if there is Scottish independence, then presumably we will no longer even be Great Britain – and thereby not .gb.
Maybe, without Scotland or Northern Ireland, England and Wales will try to persist in calling themselves either the United Kingdom or Great Britain.
You know, just like those pop bands from the 1970s and 1980s that tour the nostalgia circuit but with only one or two of their original members.
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Perhaps, if Scotland and Northern Ireland do leave the union, England and Wales could adopt the domain .ew ?
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Or perhaps not.
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Given it seems that it would not cost anything to get rid of it, and that it appears nobody else could take it, there may be no practical risk in letting .gb go.
But this will be one of many questions about our self-identity if and when Northern Ireland and Scotland (and less probably Wales) leave the union.
And just as the history of these islands to 1922 can be told as a move from separate nations to one union with ever grander names, the history of these islands from now may be told as a sequences of less expansive domains for the London-based government:
.uk > .gb > .ew > .eng > .lon ?
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When I was young there was an electronics shop called Tandy in the centre of Birmingham, just down from what was then (and should still be) called the Rackhams department store.
One day in 1981 I recall the shop being full of CB Radio kits and paraphernalia, for CB Radio was to be made legal with a licence and so was the Next Big Thing.
The momentous day came where people could buy a licence from the Post Office.
But.
The kits and paraphernalia were unsold, and the licences unbought.
For nobody seemed to care.
The fact that there was now this informal electronic means of instant communication did not mean anyone wanted to actually use it, and still less wanted to pay for it.
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Whenever I think of social media I often think about CB Radio, and that branch of Tandy with their piles of unsold stock.
Pleasingly, not far from where that store was, there is now a monument to Tony Hancock, whose “Radio Ham” mocked an earlier generation of instant electronic communication enthusiasts.
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One assumption is that people will carry on caring about social media in the way they did when it was new and exciting.
Of course: the idea of a social media platform cannot be un-invented, just as short wave radio could not be un-invented.
As long as there is a world wide web and access to an internet connection then there will always be a possibility of social media.
But there is no particular reason why one platform will last forever.
I recall when Friends Reunited and then MySpace were the Next Big Things.
There is no reason why Twitter and Facebook cannot go the same way, to be replaced by a new platform – or by no platform at all.
The problem for many of these sites is their commercial model.
People do not want to pay to click things.
What did for Friends Reunited for me, I recall, was then they started charging me to do things for which they had not charged before.
And the new owner of Twitter is now discovering people do not want to pay to have blue ticks.
(“The ticks are not blue but white,” say the most boring people on Twitter, just before they are muted.)
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I have never had a blue tick, and I refused the offer when it was made to me.
Indeed, I am opposed to the blue tick system, as it can confer a false quality mark and it has done for some vile Twitter accounts.
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Charging for this supposed privilege seems to be backfiring.
People do not want to pay to click – or to tweet.
And just like the hapless Tandy store managers surrounded by their unsold CB Radio kits, one can imagine Elon Musk wondering why people are not paying to use instant electronic communication.
While social media is here, and free and easy to use, it will be used.
But make it less free or less easy, and then it will tend not to be used.
Perhaps Musk can convert the Twitter platform into something which will be the Next Big Thing.
Perhaps Musk is the new king of the road:
“Cos when you’re up in the cab, you’re the king of the road And it’s dead romantic, like. And then I remembered my two-way radio, So I started feelin’ better, And I thought “I’ll start a convoy You know, just like that American feller.””
“Er, Plastic Chicken, don’t you think you’d better change gear for this hill? What’s wrong with the gear I’ve got on, doesn’t it look right? Change gear, ram your foot on the floor and change the gear, what you talking about, you don’t know how to drive a truck do you, you’ve no idea how to drive a truck, you’re mad..”
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We will see if Musk has any idea how to drive this particular truck.
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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.
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!
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 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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