Legal Regulations Amidst the Social Media Brouhaha

Iwas opportune to attend the 2019 Annual General Conference of the Nigerian Bar Association (NBA AGC 2019), a sitting which was described by the Chairman of the Local Planning Committee as, “the largest gathering of Lawyers in Africa”, and by the President of the International Bar Association (IBA) as, “a combination of two IBAs in one”, and more. By whatever description used, the NBA AGC 2019 was truly educating and enlightening, characterised by progressive discussions in consonance with the Conference theme of “Facing the Future”.

Of all the activities I engaged in, including commuting between the far-flung Conference venues, navigating through the “Whova” technological application on my phone screen, listening to the robust array of speakers cum panelists, and trying my hands at networking; the discussions emanating from the session themed “Social Media: Culture, Liability and Professional Ethics” were most remarkable, as will be examined in subsequent paragraphs. Taking a cursory look at the NBA AGC programme, I made a mental note to attend the session on social media. This decision, though beneficial, is not unusual, considering the fact that I am a student of Roscoe Pound, and a fervent advocate of the responsible use of social media as a tool for social engineering.

Social Media and Legal Matters Arising

Certainly, social media has influenced the way we live, and, consequently, the way law is practiced. The proliferation of social media networks and users, has also initiated discussions on legal reforms and regulation on the subject. The subject of social media usually raises two primary issues of interest to Lawyers, irrespective of their specialisation. The first relates to how Lawyers can conservatively engage on various social media platforms, without breaching the Rules of Professional Conduct (RPC), while the second centres around the need for improved regulation of social media activities, bearing in mind the legal impact of social media on businesses, as well as the continuous struggle to stay abreast of related improvements. Of particular interest, are the privacy cum security, intellectual property, employment and defamation concerns, relating to social media, globally.

It must be stressed that, in spite of the call for the enactment of social media specific regulations, the basic rights and responsibilities attaching to traditional relationships equally apply to the social media world. The United States Court of Appeal for the Fourth District of Texas, recently decided Hosseni v Hansen, a case that reinforces the principle that, social media activity can satisfy the long established principle of “publication” and the related requirement for defamation, and that courts should continue to apply legal principles created in a pre-digital age to the changing technological landscape.

Social Media and the Rules of Professional Conduct (RPC)

A great deal of the conversation at the NBA AGC, was on the limitations posed by the RPC to advertisement. The RPC provisions which restrict Lawyers from soliciting for briefs, were drafted with the intention of protecting and preserving the nobility of the profession. It must be admitted that, a situation where Lawyers are unrestrained and allowed to haggle, hassle and scramble for briefs, could cheapen and demean the practice of law. However, this provision does not preclude Lawyers from being active on social media, albeit while exercising some degree of caution. For example, advancements in technology cannot be an excuse to divulge confidential information relating to clients, and to “adjudicate or pronounce verdicts” on matters that are sub judice.

The IBA recognises the significance of social media on legal practice, and has articulated a number of rules relating to the use of social media by Lawyers, in its guidelines titled “IBA International Principles on Social Media Conduct for the Legal Profession.” The guidelines acknowledge that, social media provides a platform for legal professionals to promote the administration of justice, by engaging the public in legal practice and debate. A proposal was therefore, made for the amendment of the RPC to allow for the use of social media by Lawyers. In the interim, however, it was suggested that the NBA should take a cue from the IBA, by putting together an indigenous guideline, to regulate social media conduct for Lawyers called to the Nigerian Bar. The contents of the suggested NBA guidelines should be of interest to every Lawyer practicing in Nigeria, because extreme harshness or undue leniency could adversely affect the profession, in the digital age.

Social Media Law- A Specialisation in Itself

As mentioned earlier, technological advancements and the addictive nature of social media, is characterised by abuse and breaches. The constant abuse of the use of social media and the persistent clamour for privacy, give rise to a number of legal questions which ultimately create a unique practice area for pro-active Lawyers. Certainly, social media gives individuals access to vehicles for self-expression, and to an audience unrestricted by geography, such that users contend that these platforms are the equivalent of engaging in a conversation, and, as such, discern no potential for legal repercussions for what they put up in this space. It is pertinent to mention, however, that technology is no excuse for breaching another person’s rights. Therefore, responses to social media abuse, are either private or public.

In the private realm, regulation of online speech can be carried out through the law, via industry measures, or the use of voluntary policies by the providers. The ‘Report’ function which allows users to report abusive comments and inappropriate content, is available on all social media platforms, and supported by the user terms and conditions of these platforms. However, these may not be sufficient safety measures to protect vulnerable users. The legislators therefore, have a responsibility to enact legislation to protect the rights of their citizens. Lawyers have a role to play, in ensuring that the relevant bills are drafted, taking existing legislation and treaties into consideration.

Each time prominent social media influencers die, I wonder what would happen with their accounts, posthumously. Issues surrounding the transmission after death of content created on social networks (Instagram, Twitter, Facebook and the likes), have become of interest to succession law practitioners in particular. A recognition of the fact that content is king, and a valuable form of digital asset could provide a basis for the initiation of conversation pushing for the reform of legal provisions to allow a deceased user’s family or successors the right to acquire intellectual property rights to unpublished content, without necessarily allowing such successors access to the actual account. It has also been argued that, the law should prevent the deceased’s successors from controlling his/her account and personal data, for reasons relating to post-mortem privacy.

Employee/ Employer Concerns in relation to Privacy

The use of social media can be said to have blurred the line between person and private life, particularly with employees struggling to create their personal brands within the existing organisational structure. Many employers are beginning to put in place employee privacy laws, which are expected to define the boundaries between an employee’s rights to personal privacy, while balancing the rights of an employer to protect itself from risks or harm that may result from an employee’s activities.

These rules are evolving and vary from industry to industry, and even differ across jurisdictions. In the interest of protecting themselves, employers often create social media policies that are broad and sweeping. However, many of these omnibus provisions and regulations have been criticised, based on the argument that every citizen has a right to free speech as guaranteed by the Constitution of almost every nation. The question, “should working in an organisation interfere with an individual’s fundamental human rights?” leaves room for research and reactions from labour Lawyers.

Conclusion Discussions relating to social media and the law are most timely, with Twitter and Facebook making headlines in recent weeks, following their announcement of new policies concerning political advertising on their platforms. These policies have sparked controversy, with Twitter's ban also affecting adverts relating to advocacy for legislative issues of national importance. It is however, safe, to defer analysis of the new regulations until Twitter releases its full policy on 15 November, 2019.

While we wait for the full insights into these regulations, I believe Lawyers should take advantage of the benefits of social media, within the ambits of true professionalism. The definition of professionalism, will however, need to be regulated by the Nigerian Bar Association, with a view to preserving the tenets of the noble profession. It will not be out of place, to have this indigenous social media regulation cum guidelines unveiled at the NBA AGC 2020.

“CERTAINLY, SOCIAL MEDIA HAS INFLUENCED THE WAY WE LIVE, AND, CONSEQUENTLY, THE WAY LAW IS PRACTICED. THE PROLIFERATION OF SOCIAL MEDIA NETWORKS AND USERS, HAS ALSO INITIATED DISCUSSIONS ON LEGAL REFORMS AND REGULATION ON THE SUBJECT”