Social media is not bad in itself, just like the telephone or television or email isn’t in itself bad. But the way it has come to be used by some people presents immediate challenges for some of our most important public institutions and processes. This is an enormous challenge for legislators, but it is one that they cannot duck.
In the last 18 months we have seen how the use of social media can jeopardise the proper functioning of the courts and of elections.
The Belfast rape trial could have collapsed because of commentary on social media. Every day in the trial the judge warned jurors not to read about the trial on social media, on many occasions especially mentioning Twitter. Given the pervasive presence of social media in many people's lives, especially young people, these strictures will become increasingly difficult to follow, police and enforce.
It is a threat nowadays in almost every trial. Defence lawyers watch social media closely, looking for any opportunity to secure their client’s liberty, as they are bound to do.
In the long-running trial of ex-Anglo Irish Bank boss David Drumm, jurors were warned on Thursday by Judge Karen O'Connor not to carry out any research online or via social media. "Do not let anyone try to influence you," Judge O'Connor told the jury, according to Thursday's court reports.
The trial has so far taken 49 days. It has a way to go. But careless use of social media could have it abandoned at any stage.
During and before the trial of Solidarity TD Paul Murphy and others for falsely imprisoning then tánaiste Joan Burton in Jobstown last year there was a campaign on social media with a view to securing an acquittal for the defendants.
Supervision
The non-contamination of a jury is one of the pillars of the criminal justice system. The idea of a jury trial rests on the principle that the accused’s peers should judge him or her on the evidence adduced in court under the supervision of a judge. Dispense with that and the rights of citizens to a fair trial and fair treatment are grievously undermined.
And yet the increasing intrusion of social media into court proceedings – what else do you think all those judicial warnings are about? – means that the day when an important criminal trial will be abandoned because of content on social media inevitably approaches.
The organised use of social media also presents a threat to the electoral process, a subject on many minds as we approach a highly contentious referendum.
The last US presidential election and the Brexit referendum in the UK have shown how personal data – supplied happily by all of us to social media and internet companies – can be utilised to construct highly targeted messages.
Greatly simplified, the process operates like this: you like or forward a post that expresses concern about, say, immigration. You will then be bombarded with messages about immigration and about how candidate X (Donald Trump, maybe) will crack down on immigration. You might also be bombarded with untrue posts purporting to be news stories about how immigrants are threatening your locality, making you even more responsive to the anti-immigrant campaigning.
Veil of anonymity
Of course, we don’t know how effective the techniques are. But that’s part of the problem. We don’t know anything about them at all. The whole process can take place behind a veil of anonymity and secrecy.
If I run for election and put up posters or take out advertisements, every piece of election literature I produce can be traced to me because of the requirement to identify me on the poster. So candidates and campaigns are held accountable for their ads, claims and arguments.
They are also subject to strict spending limits. But that doesn’t apply on social media. It’s the wild west of electioneering.
If we believe that candidates should be accountable for their campaigns, why not on social media? The answer is simply because nobody has got around to it. And that, frankly, is not good enough anymore.
We are now facing into a constitutional referendum where there will be huge international interest, and, consequently, huge scope for foreign interference in the campaign, with no legal or regulatory tools to do anything about it. That much was confirmed by the chair of the Referendum Commission and by the Standards in Public Office on Friday. The Broadcasting Authority of Ireland, which has rules about how television and radio cover campaigns, has no powers over social media either.
Basically, every pro-repeal campaigner believes that the pro-lifers will bombard swing voters with social media campaigning paid for by American conservatives. The Save the 8th group has already hired a firm which specialises in such campaigning, though it says it is not using micro-targeting techniques here.
Foreign funding
Anti-repeal campaigners point out accurately that there has already been an intervention by foreign funding here – the €137,000 that Amnesty received from George Soros to campaign for a change in the law on abortion. Amnesty was ordered to return the money, but has refused, and is challenging the decision in the courts.
Fianna Fáil backbencher James Lawless has produced a Bill which would go some way towards policing political advertising on social media, but the Government has shown no interest in it.
Actually what is needed is for an Oireachtas committee to put the head down for a few months and come up with a package of legislative proposals. We also need a standing electoral commission to oversee both elections and referendums.
This will be difficult thankless work. It would also be the epitome of good government.