Open Access Research Article
SOCIAL MEDIA AT LAW: A REMEDY TO THE FREEDOM OF EXPRESSION IN A DEMOCRATIC PROCESS
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Article Details
SOCIAL MEDIA AT LAW: A REMEDY TO
THE FREEDOM OF EXPRESSION IN A
DEMOCRATIC PROCESS
AUTHORED BY- SONIA BALHARA
5th Year, B.A.LLB (Hons.)
Abstract
The Freedom
of Expression and Technology in the delivery of legal judgment and
jurisprudence have been a concern to the users of social media in expressing
their rights to speech in a democratic process. Thus, the Freedom of
Information Act is an adoption of the Universal Declaration of Human Rights
(UDHR) by the United Nations Organization. This paper intends to look at the
use of Information Communication Technology (ICT) in the process of judicial
adjudication to comments made on social media to obtain justice and equitable
remedy to crimes committed online. Furthermore, the paper will also examine the
strategies of ICT which can have an impact on the freedom of expression without
infringing the rights of an individual as well the government policies when it
is being discussed or highlighted in social media such as a blog, Twitter,
Facebook, etc. There is a gap or cavity in law where most legal minds (lawyers)
do not use ICT (even though it has become a compulsory core course in the
training of law students) when it comes to jurisprudential issues such as
judgment. There is a need to create awareness of the significance of ICT to the
judiciary and other para-legal services within the Ministry of Justice as it
affects the entire society. We, therefore, recommend there should be a synergy
between the ICT expert and the legal expert before they can pass their judgment
in a developing economy. Developing countries need to be proactive and address
access from a human rights perspective, the price of not doing so will still
progress and further exacerbate the development gap and inequalities in these
countries.
Keywords:
Social Media, Freedom of Expression, Information and Communication Technology
(ICT), Judiciary, and Democratic Process.
Introduction
Freedom of Expression on social media
is a fundamental freedom right. Due to internet privacy, it is essential to our
freedom to communicate and associate, but information on individuals’ Twitter,
and Facebook that relates to crimes can be used to adjudicate the person of his
or her wrongful act. Technology plays an important role in social development
and justice delivery, and the application of technology for development and
social change agenda is very important. The right to freedom of expression is a
pillar of the democratic process which is provided under Article 19 of the
International Covenant on Civil and Political Rights (ICCPR) of 1976[1]. The
Freedom of Expression is provided under Article 19 of the Universal Declaration
of Human Rights (UDHR) of 1948[2] which is a
clear indication that freedom of expression is viewed internationally as a
fundamental right and a condition precedent in any democracy. Furthermore, it
is usually accepted that freedom of expression creates a marketplace of ideas
and ensures individual development and self-fulfilment[3].
The Internet and Social media have become increasingly important in a
democratic process. They are important to human rights defendants everywhere.
However, the use of this new ICT to assert old freedoms has been met with
repression by some governments in authority. In this paper, there is the need
to examine a lot of challenges that social media and law represent in our
judiciary. Thus there is the need to ensure better protection of personal
integrity in social media; the right to freedom of expression shall not be
compromised. It analyses and adopts a broad approach to freedom of expression
by covering social media freedom.
Conceptual Framework
In a democracy, people listen to and
tolerate opinions with which they disagree[4].
Freedom of Expression ensures that governments are unable to abuse democratic
or fundamental rights. Democracy would be defined as ‘rule by the people, which
he interprets as … all citizens shall participate on an equal basis in public
decision-making on vital aspects of common affairs, including social life, the
economy, morality, and education[5]. Democracy
does correlate with prosperity. Democracies without market economies are not
prosperous, though they do seem to be somewhat more so than non-democracies
with similar economic policies. Economic policies and the integrity of the
legal system are much more significant. Democracy creates an enabling
environment for the maximum enjoyment, security, and enforcement of the human
rights of the citizens. A constitution can only be properly operated under a
democratic government. It is important to state that the rights contained in a
constitution can only be properly enforced under a democratic government.
The essence of democracy is that all
citizens have a right to participate in decision-making. According to Coetzee
and Le Roux, they agree that democracy can be regarded as a system of
government in which the ruling power of the state is legally vested in the
people, the government of the people, by the people, and for the people[6]. Without
strong policies to foster linguistic diversity in all aspects of governance,
administration, law and the media, we are denying the citizens the right to
engage in basic public life and debate. ICT advances, for example, the use of
the internet all social media to reach more people in different places, all
internet users to share their opinions more readily, and allow information to
flow across borders. Social media has its problems as well as gains. This new
concept leaves us with a lot of new challenges. However, it is important to
ensure that Internet regulations do not infringe on freedom of expression.
Social Media and Law Enforcement
The expansion of social media has
enabled the ubiquitous exchange of information in various sectors of the world.
This trend of the use of social media has not spared the legal sector. People
use social media platforms such as Facebook, Twitter, Instagram, and YouTube to
disseminate legal information. Social media exudes a positive impact on law
enforcement. Firstly, many law firms have used such social media platforms to
market themselves to create an awareness of the legal services they offer to
the general public.
Secondly, social media is being used
in solving crime. For instance, by interacting with the users of social media,
crime investigators can get an insight into how crimes are being committed
locally and globally. Furthermore, it is also possible to track criminal
activities that are committed online by monitoring what users post on a social
media platform.
Thirdly, another benefit of social
media is that it can be used to track people who have been kidnapped or even
those who are missing. This is so that an investigator can analyse the comments
posted by friends on Facebook, Instagram, and other social media platforms.
Fourthly, social media can be used as
a portal to disseminate security and safety messages so that people are aware
of the potential risks in their community. A social community web portal can be
created to facilitate the interaction between the local community residents and
the police. For instance, alert and warning messages about rampant crimes in a
particular community can be broadcast on the community-oriented policing
portal. However, this may be difficult in developing economies where the use of
ICT is very limited to rural communities and lack internet facilities, unlike
developed economies where information is key to every citizen.
Fifthly, social media can be used as
an intelligence-gathering tool as some criminals tend to brag about their
criminal activities. This therefore becomes a source of evidence for
investigators as the law enforcement agencies collaborate online to crack down
on the crime.
Social Media and Human Rights
ocial media is being extensively used
to promote human rights and freedom of expression in the world. This is so
because social media offers many benefits to the general public. The right to
freedom of expression is usually regarded as a fundamental human right for most
of the democratic societies. Social media, therefore, provides a public
platform for people to exercise their freedom of speech. This entails that the
technology of social media can be used to promote democracy and human rights by
providing communication channels and infrastructure among citizens. For
illustration, literature has shown that social media tools such as Facebook and
WhatsApp have been used by the citizenry to express their views about politics
by organising protests. There is a surfeit of roles which social media can play
in advancing activism such as attacking and pondering unjust ideologies
organising and conscripting a network of activists, for a course of action to
take. It is soothing, for example, to note that a good use of social media can
expose corruption and other vices thereby promoting accountability and
transparency of the services by the government and the private sector.
Furthermore, social media has been shown to bring people together from diverse
backgrounds such as religiosity, ethnicity, values, beliefs and political
affiliations. Such environments provide infrastructure for the omnipresent
exchange of various forms of information and knowledge. The continued uses of
social media tools enable social interactions of people even though they may be
separated by distance and time. This is possible due to dynamic advancements in
technology that consequently transform the social and economic aspects of the
citizenry. Human rights are rights one has simply because one is a human being[7]. Human rights
are those liberties, immunities and benefits which are accepted by contemporary
values that all human beings should be able to claim as of right.
Despite the aforementioned benefits,
it is noteworthy to highlight various challenges and abuses that come with the
usage of social media about human rights and freedom of expression. To protect
users of social media, security measures are implemented. However, the
challenge is to make sure that the security control and internet regulation
should not muzzle the freedom of expression. Much as many people enjoy social
networking, users must be aware of some threats online. Major social media
attacks are spamming, social engineering, application and widgets; and content
threats. Spamming involves the sending of unbidden and irrelevant messages to
the recipient. With social engineering, some people masquerade or hide people’s
identities to trick others into revealing their identities.
The stolen information may be used
even for financial gains. The fear that their sensitive information may be
stolen compromises the freedom of expression. In addition, people minimise the
use of the internet in fear that their electronic gadgets may be infected with
malicious code usually called viruses. It is crucial to note that some
requirements need to be met if social media can effectively promote human
rights and freedom of speech.
·
Firstly, social media should be able to operate in a
free environment that is not usually controlled by the state. The institutional
media need to be protected by international standards, laws and acts on freedom
of expression.
·
Secondly, the media need to be free from political,
social and economic interference by the state.
·
Thirdly, there must be a diversity of media which
should be accessible to the society. This means that society should have access
to a variety of media, content and platforms to evade a monopoly of information
by one single group of groups.
·
Finally, most importantly, there must be equitable
access to a diversity of issues raised by the government for the public
interest.
Social Media and Application of Law
The right to privacy is protected by
Article 8 of the European Convention on Human Rights. UK law also protects the
privacy of individuals from the state and other private individuals on social
media. However, there are several exceptions to these rules that allow
intervention if breaching your privacy is deemed necessary to society, such as
when certain policing operations are concerned. In recent times, everyone has
been a member of social networking. Whether it's our children on MySpace and
Facebook or our colleagues on LinkedIn, people are taking advantage of these
new online meeting spaces to make friends, communicate and engage in business
opportunities.
Social networking users don't enjoy
any of the immunities granted to social networking sites under the law, so they
should be careful to always act appropriately when posting messages or files to
the sites. In some jurisdictions like Nigeria, the use of social media to
communicate and express an opinion is a freedom of expression and is protected
under Chapter IV which deals with fundamental human rights[8].
However, in South Africa, the constitution gives SAHRC (South African Human
Rights Commission) as an institution the task of monitoring the attainment of
human rights[9]. The
commission is aware of the rising levels of hate speech being disseminated on
social media[10]. Thus,
the use of social media like Facebook and Twitter is imparting social cohesion
as a constitutional mandate for the development of a culture of respect for
human rights in a democratic process instead of abuse or misuse of social
media.
The main areas where users can get
themselves into trouble are through the posting of defamatory content or
content that infringes on intellectual property rights. Since no statutory
immunities exist to shield users, the standard laws about defamation and
infringement apply.
Barriers to Freedom of Expression
Article 10 protects your right to
hold your own opinions and to express them freely without government
interference[11]. This
includes the right to express your views aloud (for example through public
protest and demonstrations) or through published articles, books or leaflets,
television or radio broadcasting, works of art, and, the internet and social
media. The law also protects your freedom to receive information from other
people by, for example, being part of an audience or reading a magazine.
However, you have freedom of expression; you also must behave responsibly and
respect other people’s rights.
The government authorities may
restrict this right if they can show that their action is lawful, necessary and
proportionate to: protect national security, territorial integrity (the borders
of the state) or public safety, prevent disorder or crime, protect health or
morals, protect the rights and reputations of other people, prevent the
disclosure of information received in confidence, and maintain the authority
and impartiality of judges[12].
The government may be allowed to
restrict your freedom of expression if, for example, you express views that
encourage racial or religious hatred or hate speech. However, the relevant
government authority must show that the restriction is ‘proportionate’, in
other words, it is appropriate and no more than necessary to address the issue
concerned. In South Africa, section 7(3) in the Bill of Rights tries to limit
it under section 36 of the same Act in terms of law of general application to
the extent that the limitation is reasonable in an open and democratic society
based on human dignity, equality, and freedom[13].
From the above limitation clause, this might affect section 16 of the
constitution which deals with the right to freedom of expression. In Print
Media South Africa & Anor v Minister of Home Affairs & Anor[14], the
court held that the right to freedom of expression embraces the liberty to
express and receive information or ideas freely, and to form one’s opinion
about these; in this way, it both promotes and protects the moral agency of
individuals. It further held that the limitation of the right of freedom of expression
by the impugned provisions of Act 65 of 1996 was not justifiable.
In criminal proceedings or
adjudication of cases, where an accused or suspect is being tried based on the
information acquired from his social media post or internet will his or her
right to privacy be infringed? The jurisprudence in freedom of expression and
the prevention of crime does not affect useful information which may aid the
court or the judge in the adjudication of justice. It is also important to
state that once public interest is involved, the right of the user of an
internet source or social media will be prosecuted and violated, even though he
or she is expressing his opinion.
International Law and Freedom of
Expression
In international law, the freedom to
express one's opinions and ideas is considered essential at both an individual
level, so far as it provides the full development of a person, and is a basic
rock of a democratic society. The Universal Declaration of Human Rights (UDHR),
pronounced by the United Nations General Assembly in 1948 in the post-second
world war, expressed an obligation by the world to promote and observe a full
set of fundamental human rights. Article 19 of the UDHR protects freedom of
opinion and expression in the following terms;
Everyone has the right and
expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media
regardless of frontiers[15].
From the above quote, the
international community has been promoting the rights enshrined in the
international convention which member states have ratified in their national or
regional instruments, but still, expressions made by individuals or groups of
persons in social media are subjects of debate. This action hinders the trends
of democracy and the rule of law where every citizen is allowed to express his
opinion without being victimisation or detained by the government in power
through their agents. It is important to state the rights contained in UDHR as
well as the right of opinion and freedom of expression are protected by the
legal instruments of international treaties regional human rights law and
domestic human rights law stated therein.
Freedom of expression is the
foundation of democracy. Freedom of expression and information are pillars of a
healthy democratic society and for social and economic growth, allowing for the
free flow of ideas necessary for innovation and bolstering accountability and
transparency. Through social media, most events and policies of the government
are in the domain of the public interest. Thus, democracy will only work and
produce decisions that are in the public interest if all stakeholders and
members of the society can contribute not only in the decision-making process
but also in the decision-making processes through their voices in social media.
The Application of Information
Technology in Combating Crime
The spread of crime in the world has
not spared any country. This in turn created more the potential for people to
commit crimes. Fortunately, ICTs have proven to help in the fight against crime
in developed and developing countries. For example, telephone interviews can be
used in the investigation of criminal activity. It is a known fact that
computers have been used to capture, store, analyze and interpret information
during criminal investigations. Database information about people helps in
keeping records and tracking suspected criminals online. Literature shows that
ICT can be used for legal diagnostic purposes [16].
Not surprising also to note computers have been shown to assist legal
professionals in passing judgements thereby speeding up the provision of legal
services[17].
Mobile phones are widely used for
collecting crime scene information that may later be passed on to another
police facility for evidence analysis. The use of portable mobile devices has
accelerated the capture of perpetrators at the scene of the crime. Electronic
mail is used for encrypted exchange messages between criminalists. There are
cases where a secure website was used to exchange information about a missing
person for international cooperation. It is important to note that even radios
were used to spread information about crimes inside the local community. In
addition, Global Positioning Satellite (GPS) technology has been demonstrated.
They can be, for example, mobile phone users easily tracked using the cell
tower triangulation technique. Some GPS devices can be fitted to suspects to
track their movements. In addition, a geographic information system (GIS) can
be used to store information that can later be used to track suspects.
Despite the aforementioned use of ICT
in the legal fraternity, several crimes are committed online. Hackers and
fraudsters try to gain access to computers to steal sensitive personal
information such as passwords, credit card information, etc. Using this
information, hackers can use a credit card to make online purchases. This
results in what is called financial fraud.
Challenges of social media and law
ICT including social media has been
known as a platform to assist in executing court cases[18].
However, many challenges can be attributed to the use of social media in law.
This section endeavours to outline the challenges that are encountered by both
legal practitioners and their clients when using social media in an attempt to
seek fair justice. Even though ICTs are being integrated into the curriculum of
law, there is a dearth of skills in ICTs among legal professionals. With the
advancement of technology, some legal cases require a clear understanding of
ICTs. It is a known fact that the lack of knowledge may have an impact on the
verdict of a court case Despite the ubiquitous use of social media, many
developing countries lack ICT infrastructure to sustain the new technologies[19]. This
consequently contributes to the limited access to the internet. As a result,
lawyers and clients encounter problems in accessing legal information on the
internet. The limited access to the internet is compounded by the insufficient
supply of electricity in resource-poor settings[20].
Furthermore, low access to ICT gadgets has an impact on the access to legal
information by legal professionals.
It is also a known fact that
inadequate funding has contributed to poor implementation of ICT initiatives in
developing countries[21].
Unfortunately, this has led to low access to ICT services by both lawyers and
clients. This inadequate funding has partly emanated from the lack of political
will. This is because the government usually allocates low funds to the deployment
of ICT infrastructure and other initiatives. Low ICT literate levels among
lawyers and clients subsequently result in poor record management of legal
cases[22]. This is
so because ICT has proven to accelerate the speed and ubiquity of processing, storing
and sharing of legal information in the legal sector. Therefore, a lack of ICT
skills may lead to poor delivery of legal services. Furthermore, though ICT has
been incorporated into the law curriculum, there is still resistance to change
among legal practitioners[23].
Therefore, it is of paramount importance to double the effort in training the
legal practitioners and the clients at large[24].
Another challenge that the legal
profession faces is the lack of trust by clients in legal practitioners[25]. Additionally,
with the advent of social media where many topics can be freely and
ubiquitously discussed, clients are worried about the security, privacy, and
confidentiality of their sensitive information. This threat is being compounded
by the increase in cybercrime on the web. Cybercrimes include theft of
sensitive personal information on the web, access to unauthorized information
on the web, and distribution of malicious code that may ultimately cause harm
to the ICT gadgets thereby leading to the loss of vital information[26].
The Judges and Social Media in
Adjudication
Social
media has been used as a way of bringing forceful, on occasion overwhelming,
stress to undergo on an individual or a commercial enterprise or a political
celebration against which it's miles directed. School youngsters frequently
file bullying on social media. it's miles in particular in developed economies
wherein ICT is taught early in colleges. However, their counterparts in growing
economies mainly rural dwellers or villages no longer recognise or have get
right of entry to social media to log a complaint besides their educated mother
and father or guardians as the case can be. Social media can be used, properly,
as a way of making a sense of strain on a person to conform to the placement it
advocates. Judges aren't allowed to apply social media in developing economies
like Nigeria due to professional ethics and code of conduct. but, different
jurisdictions like Australia and the USA may additionally permit it to the
volume that it's miles his very own non-public use for conversation together
with Facebook. but, where a sitting choose has a communique on Facebook with a
lawyer or legal professional who seems earlier than him or her in their
respective courts or litigants, it'll preclude first-rate justice and it isn't
always allowed for fairness, justice, and independence of the judiciary.
Conclusion
Freedom of expression is a basic
human right that must be protected in democratic institutions. Thus, there is a
worrying worldwide trend of governments unjustifiably restricting freedom of
speech, aimed at social media users and individuals who use the internet to
express themselves their opinions or communicate with the world about
government policy. Moreover, in Western democracies, laws are used to regulate
and restrict activities that threaten the freedom of the press and freedom of
speech as part of citizens' rights. Civil societies and NGOs around the world
must be vigilant in defending free speech. This is the basis for improving people's
lives and the formation and preservation of healthy, sound democratic
principles in our societies.
[3] Abrams V United States 1919US 250,616, Clayton and
Tomlinson Privacy and Freedom of Expression; Curie
[7] “Democracy and the Protection of Human Rights’’ ,
International Journal of Social Sciences, Vol 5 No.4, 2012, pg 59.
[8] S.36 of the
Constitution of the Federal Republic of Nigeria Law of Federation, 2004.
[9] Chapter 9 of the
South Africa Constitution 1996.
[10] The Public Sector Manager, March 2018,22.
[11] European Convention on Human Rights protects your right to
hold your own opinion and to express them freely without government
interference.
[12] UNESCO: Building peace in the minds of men and women:
Freedom of Expression. A Fundamental human right underpinning civil liberties.
See also UN General Assembly. (2016). Report of the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, UN
Doc. A/71/373, 55
[15] Article 2 (b) Canadian charter of rights and of a freedoms,
1982; Article 10 of European convention for the protection of human rights and
fundamental freedom, 1953; see also Article 9 of the African charter of human
and people’s rights 1981; see Section 7(1) of the Constitution of the Republic
of South Africa, 1996. See also Canada. (1982). Canadian charter of a rights
and freedoms, article 2(b). Retrieved from: http://lawslois.justice.gc.ca/eng/Const/page-15.html accessed on 4 April 2018
[18] Lowery, J. (2013), Corrections between ICT and records
policy integration and court case management system functionality: East African
case studies, Records management Journal, 23 (1), 51-60.
[19] Gichoya, D.(2005), Factors affecting the successful
implementation of ICT projects in government, the Electronic Journal of
e-government, 3 (4), 175-184.
[20] Doli, C. N & Pachauri, S (2010), Estimating rural
populations without access to electricity in developing countries through
night-time light satellite imagery, Energy Policy, 38 (10), 5661-5670.
[21] Basu, S. (2004), E-government and developing countries: An
Overview, International Review of Law, Computers & Technology, 18 (1),
109-132.
[22] Asogwa, B.E, (2012), The challenges of managing electronic
records in developing countries: Implications for records managers in sub
Saharan Africa, Records management Journal, 22 (3), 198-211.
[23] Kiskis, M.P, Rimantas; (2004), ICT adoption in the
judiciary: classifying of judicial information, International Review of Law,
Computers & Technology, 18 (1), (1), 37-45.
[24] Fabri, M & Contini, F.(2001), Justice and technology in
Europe: How ICT is changing the judicial business: Kluwer Law International.
[25] Buchanan, J.C. (1993), The Demise of Legal Professionalism:
Accepting Responsibility and Implementing Change, Val. UL Rev., 28, 563.
[26] Broadhurst, R. (2006), Developments in the global law
enforcement of cyber-crime Policing: An International Journal of Police
Strategies & Management, 29 (3), 408-433.
Article Information
SOCIAL MEDIA AT LAW: A REMEDY TO THE FREEDOM OF EXPRESSION IN A DEMOCRATIC PROCESS
Authors: SONIA BALHARA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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