Effectiveness of UK Social Media Regulation - Literature review Example

Effectiveness of UK Social Media Regulation Introduction Social media refers to internet sites in which people interact and communicate. Some of the social media sites include Twitter, YouTube, blogs, Facebook and MySpace. People use the social media to communicate through the internet or other virtual networks. Many companies in the world also use social media as a marketing tool to create awareness about their products and pass important information to their stakeholders who access the social media. Social media companies such as Facebook and Twitter have good web and mobile based technologies to create interactive forums for users. They have developed features that have attracted many users across UK and the rest of the world. There have been a rising number of social media users over the past few years, especially Twitter and Facebook users. Widrich (2013) suggests that 67% of internet users by 2013 used social networking sites. The study suggests that 70% of people living in urban areas spend most of their time on social media. The table below shows that Facebook is the leading social media network in terms of users, followed by Twitter. Currently, there are about 1.2 Facebook users and about 200 million Twitter users. Fig 1: Landscape of Social Media users (Widrich, 2013) Despite the benefits of social media, there have also been cases of human rights violation, insecurity, and other malpractices through the social media. For instance, a UK lawmaker known as Stella Creasy reported that she received rape and murder threats via twitter. The lawyer referred to the tweets sent to her as of criminal nature, and not insulting, or offensive or abusive. Some other forms of malpractices that take place on social media include: violation of privacies, irresponsible or unlawful marketing practices, uploading sexually abusive pictures, etc. There have also been complains about Facebook’s privacy and disclosure of users’ information to third parties. In order to cub this problems, UK has come up with rules and regulations to govern the use of social media. Such laws cover regulations and rules on issues such as: defamation, criminal offenses, and breach of copyright on social media. The government of UK governs communications in social media sites such as Twitter and Facebook. According to Baldwin et al (2012), social media should be regulated due to market failure. The uncontrolled marketplace may fail to produce results and behaviours that are of public interest. A good regulation is that with great support from the legislative authority; has a good indicator of accountability; fair, accessible and open; the regulator acts with enough expertise; and the regime shows efficiency. The Five Criteria for Good Regulation Baldwin et al (2012) identified five criteria for good regulation. In order to determine whether a law in UK is legitimate or not, there must be some criteria to follow. When regulatory arrangements and performance are discussed in the public domain, things other than wealth maximization are always considered. Those arguments always have recurrences and include such factors as: indication of support for the action by the legislature, whether the regulation is guided by a good level of accountability, procedures are fair and open, regulator exhibit enough expertise, and the action shows some efficiency. The five criteria to assess regulation are discussed below in reference to UK’s social media regulation: The legislative mandate According to Baldwin et al (2012), if a regulatory action is authorized by parliament, then it deserves support from the public. This is because parliament is the fountain of democracy chosen by the people. A regulator may be instructed by the people through parliament to achieve a certain result. If the regulator achieves the intended result, then it gains support from the public because it will be considered to have achieved its legislative mandate. In this case, regulators are charged according to their success in achieving their mandate. However, it may be difficult to measure the extent to which a regulator has attained success in fulfilling its mandate. Regulatory statutes give regulators broad discretions; hence implementing the regulatory mandate is subject to interpretation. Implementation of regulatory statutes also leads to controversies and mutual tension in relation to other stated objectives. Regulatory statutes also allow regulators to exercise judgment and develop solutions (Baldwin, 2012). This makes it difficult to set clear objectives. Precise objectives may be avoided by legislators in order to allow regulators to cope with future problems. Regulators may face new risks, innovative problems, and challenges of novel technologies during the implementation of regulations. In this case, regulators are not engaged in the mechanical transmission of statutory objectives into viable results on the ground. UK social media regulation is authorized by the law; hence it has legislative mandate. The UK Advertising Standard Authority (ASA) is one of the regulators that have been allowed by the legislature to regulate advertisements and other marketing communications. It covers, among other areas, the social media presence by companies. These regulations include control of efforts that may mislead, harm or offend others (Tan et al, 2012). ASA regulations were recently changed to include non-paid-for space online. By including the non-paid-space, the regulation targeted the social media sites such as Twitter and Facebook. An example of legislative mandate is clear in a situation whereby representatives of Twitter in UK were called in front of British lawmakers at the parliament due to allegations that two twitter accounts were responsible for the sexual abuse of two women legislatures in the parliament. Caroline Criado-Perez and Stella Creasy were reportedly subjected to rape and vile abuse threats on the social media network. Twitter representatives were asked to appear before the Culture, Media and Sport parliamentary committee over to explain how the social media network intends to protect its UK users from harassment (NBC News, 2013). The summoning of the Twitter representatives by the Culture, Media and Sport parliamentary committee shows that the parliament as a democratic representative of the people has the mandate to regulate the social media in UK. Therefore, UK regulation of the social media is a good one. As suggested by Baldwin et al (2012), implementing the legislative mandate of a regulation is problematic. The implementation of social media regulation by its regulator is faced with certain challenges, especially those challenges that deal with the objectives of the legislation. For instance, it is difficult to determine whether an act in the internet can be rated as harassment or just simple fun and jokes. This is subject to interpretation by the law; hence it carries a legislative mandate (Baldwin et al, 2013). NBC News (2014) suggests that Stella Creasy, a lawmaker in London was subjected to death and rape threats on twitter. Such a claim is subject to interpretation in court in order to determine whether the lawmaker was actually abused or not. This indicates that the UK regulation of social media is a good regulation because it has a legislation mandate. Accountability Regulators whose mandates are not clear may suggest that they have the right to get support from the public because they hold accountability to, and are controlled by, democratic institutions. Therefore, a regulator may interpret its own mandates to its representative body. Its exercise of powers is also rendered acceptable by the regulation (Baldwin, 2012). However, it is difficult to determine the body or individual responsible for that accountability. If the parliament or any other regulator does not hold the regulator into account, then the arrangement may be considered unrepresentative. The UK social media law was set by the parliament and is executed by various regulators including the Advertising Standard authority (ASA) and the court. If ASA is the regulator, the regulation may be considered as a good regulation because ASA is accountable to the parliament, which is a democratic representative institution. However, there are other institutions such as courts which are not controlled by the parliament. Social media encounters such as defamation, crime and breach of copyright may be reported by the victims to the courts. In this case, the court will interpret the social media regulation; hence the court is not considered to be accountable for the parliament which is the representative democratic institutions (Paslawsky, 2012). Therefore, the regulation of social media in this case may not gain public support and may not be seen as a good regulation. Due Process A good regulation is also characterized by due process. This refers to the process by which the regulator gains public support by using fair, accessible and open procedures. Regulatory decisions are considered to follow due process if they enhance fairness, consistency and equality. They should also allow for participation by the public, consumers and other affected parties. Due process enhances a proper democratic influence over regulation. It also leads to legitimizing effect on the democratic influence. This criterion is limited in terms of its guiding principles. For instance, it may be difficult to determine the participants and how they should participate. More participation may lead to ineffective decision making; hence causing stagnation in the regulatory system. Parties may also disagree on the mode of participation. Lawyers may consider a given mode of participation as appropriate while other disciplines may prefer a different mode. UK’s social media regulation follows a due process. It entails fairness, equity and consistency of treatment. The Crown Prosecution Service (CPS) suggests that cases of prosecuting cases involving communication sent through the social media follows processes that include a great deal of participation, especially in the stage of gathering evidence (CPS, 2014). The first stage in the prosecution process is initial assessment. This involves assessing the content of the communication through the social media to determine whether they constitute credible threat of violence or damage to property, or any other unlawful act. In order to make charges, prosecutors are required to allow public participation. Participants include human rights associations, lawyers, victims and the perpetrator. Expertise Some regulations require the exercise of expert judgment (Baldwin et al, 2012). This always happens when the case being addressed poses several options for the decision maker. A regulator may claim support in certain circumstances based on her level of expertise on the subject matter. In this case, experts assert to provide the best judgment if they are allowed to pursue their expertise freely without being subjected to duties of explanations. The problem with this criterion lies on the difficulty with which the public can ascertain if the judgment was made by application of the expertise required. Sometimes the public may also distrust the persons who claim to experts naturally. Furthermore, expertise may be questionable if the expert fails to explain why the subject matter deserves expert judgment. Social media regulation is a legal area that requires a lot of expertise. This is because there are always several options or values that can be applied in ascertaining the nature or level of communication through the social media (Miller, 2012). Social media law in UK is stated by the Advertising Standard Authority where it claims that non-paid-for space online are under control. Therefore, marketing interactions or communications in the internet are governed. However, it is difficult to ascertain the types of communications that can be considered marketing communications or advertisements. Furthermore, it is difficult to consider whether an action against somebody on the social media is a criminal act or not. There is need to have an expert to distinguish between an action on the social media that falls under crime and that which does not. Experts also determine whether any act on the internet is subject to regulation or not. UK law has classified some actions as legally offensive and punishable; such as sexual harassment of children including sending nude photos to minors, defamation, abusive language, etc. However, the laws against hate crime on social media in UK have also interfered with free speech (NBC News, 2013). Experts may determine which communication on twitter or Facebook restricts free speech and which one amounts to crime. When discussions turn out to be vile opinions, an expert should know when to restrict them and when to allow them to continue. Therefore, UK regulation is good because it considers expertise in determining the type of communication or action on social media that amounts to crime, given several options and values to consider. Efficiency A regulator may gain support due to the implementation of a legislative mandate at the least possible level of inputs or costs and highest possible level of productive efficiency (Baldwin et al, 2012). This may be affected by the problem of imprecision of mandate. For instance, it may be difficult to determine the measure efficiency if the mandate does not set down consistent or coherent objectives. It may also be difficult if the regulator’s roles contradict with those of other interest groups. In UK, social media regulation may be considered efficient because prosecution of social media criminals is done with the least cost and highest productive efficiency. NBC News (2013) suggests that the twitter accounts responsible for the sexual assault threats on Creasy - @rapey1 and @KJHUJGFTRRYGH were suspended to the best benefit of the victims; hence achieving high productivity at low cost. The role of the five criteria The main role of the five criteria is to provide benchmarks over which regulatory regimes are assessed. The five roles are rationales used during real-life debates on regulation and its reform. If a regulator is said to be fully accountable, open, fair, expert, and uses resources efficiently, then he may be considered as a good regulator. The five criteria offer assessments on the legitimacy of a regulator, rather than the level of support received by the regulator (Baldwin et al, 2012). Under the five criteria, sufficient power of justification is provided by arguments on regulation. However, strong claims often receive strong support. Public interest theories Public interest theories attempt to explain regulation. They suggest that those who seek the institution or development of regulation do so in order to achieve objectives that are of public interest rather than group, sector or individual self-interests. Regulators and their supporters are therefore agents of public interest (Baldwin, 2012). The purpose of regulation under the public interest theory is to achieve results desired by the public in circumstances where the market fails to achieve them. To achieve public interest results, the regulator should demonstrate trustworthiness and disinterest. In this case, the public develop confidence on regulators who have the interest of the public as their priorities. The problem with this theory is that the disinterestedness, expertise and efficiency of regulators may be questionable. Regulators may succumb to corruption so that they corrupt opportunities for their own interests. UK social media laws are intended to meet public interests because regulators react to the problems of social media hate crime at the best interest of the public. When the parliament of UK summoned Twitter representatives, it asked them how they are going to maintain the privacy of Twitter users in US. This targets the public in general. Interest Group Theories Interest group theories are concerned with regulations that pursue the concerns of particular interest groups, not the entire public. This is associated with the economic theory of regulation which holds that market players are inherently self-regarding and focused on maximising their own interests. The capture argument suggested by George Stigler suggests that regulations are adopted by the industry and operated for its benefit (Baldwin et al, 2012). The regulated industry is able to influence the regulator in order to benefit from the regulatory rent. This creates a market for regulation. This theory is seen in UK through the regulation by Advertising Standard Authority (ASA). This regulatory body regulates the marketing communications that take place across non-paid-for space online (Gurau et al, 2003). This means that the intended interest group in the regulation is the users of marketing information, especially companies and consumers. The interests of the general are not taken into account because the regulator covers only specific interest groups – marketers and users of marketing communications. Conclusion Regulation of the social media in England can be examined in terms of Baldwin et al’s theory of good regulation, institutional/interest group theories and public interest theories. It has been seen that there are five criteria of determining good regulation. These criteria include: legislative mandate, accountability, due process, expertise and efficiency. In terms of legislative mandate, a regulation is considered to be effective if it has a legislative mandate. Legislative mandate occurs when the regulation is backed by the parliament. In this case, the public supports it because it has been approved by the fountain of democracy chosen by the people. In UK, social media is has a legislative mandate. This is seen in the example whereby the parliament summoned twitter representatives in order to question them about how the social media site will protect the privacy of its users in UK. Accountability entails institutional accountability. A regulation is considered to be good if the regulator holds accountability to, and is controlled by, democratic institutions. In UK, a regulator such as ASA is accountable to the parliament; hence accountability is sufficient on some occasions. However, when the courts become the social media regulators, accountability will be compromised because the courts are not accountable to any elected body or institution. An effective regulation is also characterized by due process through which the regulator gains public support by using fair, accessible and open procedures. UK social media regulation follows a due process because it involves participation. Expertise entails exercise of an expert judgment when the decision to be made involves various options and values. UK social media regulators are able to determine whether a given communication on the social media is defamation, hate crime, or none. Finally, UK social media regulation can be considered efficient because benefits are achieved by regulators at high productivity efficiency. In terms of public interest theories, UK’s social media regulation meets public interest because some regulators such as the parliament act in the best interest of the public. However, some regulators also follow the suggestions of interest group theories. For instance, ASA meets the interests of interest groups including marketing institutions and companies. It is clear that UK social media regulation is effective on general. The problems of measuring the level of mandate and determining the level of expert’s exercise of duty may affect the regulation. However, evidence from how certain cases of social media hate crime have been handled show that the UK social media regulation is efficient, uses expertise, is accountable, has a legislative mandate, and follows due process. Furthermore, UK social media regulation aims at achieving public interests. Therefore, UK social media regulation is generally effective. References list Bald win et al 2012, Fundamentals. CPS 2014, Guidelines on prosecuting cases involving communications sent via social media. Accessed August 8, 2014 from https://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/ Gurau, C., Ranchhod, A. & Gauzente, C 2003, "To legislate or not to legislate": a comparative exploratory study of privacy/personalisation factors affecting French, UK and US Web sites", Journal of Consumer Marketing, Vol.20, no. 7, pp. 652 – 664. Hugl, U 2011, “Reviewing persons value of privacy of online social networking.” Internet Research, Vol. 21, no. 4 pp. 384 – 407. 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