Social media and the law

Dear Editor,

Just about everyone who has a cell phone has a social media outlet that occupies much of one’s day-to-day activity.

Time spent tweeting and retweeting, connecting with friends, following status updates and experiencing life-changing moments, virtually.

Just as in the real world, not everyone uses social media platforms for showcasing trips, spreading positivity or providing the public with meaningful and useful information.

The minute you enter a discussion on constitutional rights, someone emphatically blurts out, “Freedom of speech!”

Yes, you are allowed to say whatever the hell you want, sort of.

The real world and the cyber world may have many differences but do share a commonality — the law applies in one world just as it does in the other.

There is an assimilation of these rights in the cyber world, and just like in the real world, you can get yourself in serious trouble for abusing or misusing those rights in certain ways.

You may be free to speak about whatever you wish, but you are not inoculated against the law just because you’re hiding behind Twitter fingers or using a handle that your employer may not readily associate with you.

Writing about illegal activities, online bullying and making disparaging remarks about your employer can result in you being fired, and/or a friendly visit by the Royal Bahamas Police Force.

Threatening a police officer on Twitter is plainly and completely within the realm of violations, in case that much wasn’t already obvious given recent events.

Granted, the threat must be directed toward a specific person, rather than an entire group (of course, there is latitude on this point too as one can threaten to commit a genocide, for example) but the point still stands that it is not a good idea.

Even if you don’t violate the laws of The Bahamas in some way, chances are that the terms and conditions — that no one ever reads, I promise you — will contain a clause prohibiting certain content, and gives them the right to ban or block your account, and in a serious enough case they will report you to your local authorities. Don’t believe that? Test it out.

The most novel thing since the COVID-19 pandemic has been the implementation of a series of emergency orders by the prime minister. We haven’t seen this done often in our history.

The Emergency Powers (COVID 19) (NO. 2) Regulations 2020, Section 19 for the first time specifically criminalized the publication of “fake news”. Headed “Publication of false statements”, it says: No person shall publish or cause to be published, posted or re-posted, over any media platform inclusive of social media, any purported news or report, or purported statements of fact, knowing or having reasonable cause to suspect that the same –

(a) is untrue or false; or

(b) may incite public fear, panic or ethnic hatred.

A breach of this regulation is treated as a summary offense (Magistrates Court appearance) and carries a penalty of a fine of $10,000 or a custodial sentence of up to 18 months, or both.

The wording of this section is interesting.

To my knowledge, there is no other law in force in The Bahamas that specifically references social media. Even the lexicon is contextually different and deliberately so; re-posted would take a more literal meaning commonly referring to a physical sign or poster, for example. The draftsmen clearly intend to militate against the use of social media to spread false information.

Even if these regulations were not implemented, the provisions of other laws on our books are still of equal effect, as I said earlier.

If you threaten to harm or kill a civilian (or a police officer, to keep the topic timely) it is still a threat of death regardless of it being on Twitter.

Saying “these are just tweets” absolves you from nothing.

Reasonable suspicion and probable cause are perhaps some of the police force’s best weapons, and you effectively deliver yourself and your obvious lack of sensibility to law enforcement on a platter when you tweet or post something of that nature.

There is another legal liability that the social media community ought to be aware of.

When you make a statement that is false and it causes damage to another person’s reputation, you’ve crossed the threshold into defamation of character. Depending on whom you defame and how badly they can prove their reputation was damaged, it could result in a very expensive error in judgment.

Defamation is straightforward to explain, though sometimes difficult to prove.

First, in order for a statement to be considered defamatory, it must be published; whether in a newspaper, on Twitter or Facebook, it is of no material difference where.

Second, defamation requires malice which simply means that the maker of the statement knew the statement was false, or made the statement with reckless disregard for the truth or falsity of the statement.

If you think your character has been defamed by a statement which someone posted, then that’s a matter on which you should seek legal advice.

Although some things may be incontrovertibly false, there are times when this backfires and gives way to an absolute defense, of which the maker of the statement can rely upon.

If the maker of the statement can prove that the statement was, in fact, true, then he or she has escaped the grasp of liability and the potential payment of financial compensation for damage to your reputation.

Social media and the cyber world may seem like an escape from reality and, to some, it very well might be, but it is not an escape from the law.

The Cyber Crimes Unit of The Royal Bahamas Police Force is like the wind; you can’t see them, but they are there. We should all try to be mindful of the things we post.

There are ways to exercise your right to freedom of speech, and indeed many outlets through which you can do so, but try and be mindful that there is an invisible line that you can cross and there are consequences on either side.

— I.A. Nicholas Mitchell,

CML Chambers

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