Our report examines judicial approaches to social media and convergence. It identifies the jurisprudence of supreme, constitutional and appellate courts in a selected set of European Union (EU) countries.
Our findings show that the judicial treatment of social media cases heavily draws on the existing ‘generic’ legal framework. Many of the rules that currently apply to social media were adopted before the latter’s expansion. Defamation rules in the countries under study have been used, for instance, to capture defamation occurring through social media. Generic rules, ranging from the rules on incitement to hatred and misleading advertising to the protection of personal data, were applied in social media cases. Bringing social media within the scope of the generic legal framework has resulted, on certain occasions, in the adaptation of past rule interpretations by the judiciary. A few cases in our sample indicate for instance changes in judicial reasoning and evolving standards as regards the responsibilities of legacy media. National courts have refrained, however, from bringing social media, blogs, chat rooms and so on, within the scope of existing rules concerning the press. Finally, some cases cast light on the interpretation of technology neutrality aspects incorporated in national legislation and the absence of rules specifically regulating social media. 7 In a period of profound reflection and intense debate on social media regulation, it is significant that the judiciary makes use of ‘generic’ rules to solve disputes involving social media content and behaviour and when necessary, it re-interprets the rules precisely in order to bring social media within their purview. Any attempt at devising rules that specifically target social media, especially as far as public regulation is concerned, should thus rest on a careful assessment of the regulatory potential of the existing legal framework with respect to social media. This is because any model of public intervention into the functioning of a sector which substantially contributes to the exercise of free speech and freedom of information should be congruent with fundamental rights and freedoms and respect the principles of necessity and proportionality. Developing public policies that put social media at the heart of the regulatory model establishing duties of transparency and increased accountability towards their users could work in this direction.
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