Safeguarding Podcast – Online Media Law
By SafeToNet Foundation
We are all journalists now…Dr Holly Powell-Jones takes us through the interpretive nature of UK law as it pertains to children online, the social and cultural norms that impact law, and whether social media terms and conditions actually apply to under 18’s. All this and more in this edition of SafeToNet Foundation’s Safeguarding podcast.
If you’re prefer to read instead of listen, then there’s a lightly edited transcript below:
Neil Fairbrother
Welcome to the safeguarding podcast from the SafeToNet Foundation where we talk about all things to do with safeguarding children in the digital context. Today we’re talking about Media and Communications Law from a child’s perspective; what’s legal for them, what’s illegal and what the consequences of their actions may be.
To help us guide through this rather confusing and complex area, we have today’s guest Dr Holly Powell-Jones of Online Media Law. Holly, perhaps you could introduce yourself, give us a bit of background about who you are and the kind of work you’ve been doing with young people as far as online media law is concerned?
Dr Holly Powell-Jones
I always like to start with a big disclaimer! I am not a lawyer and nothing that I do constitutes legal advice. I have to say that because whenever you’re talking about law people tend to assume that you’re a lawyer, and you can’t give legal advice unless you are a lawyer.
I am not a lawyer, I’m actually a journalist. And when I had my journalism training, I had to pass an exam in media law and ethics in order to qualify and to work as a broadcast journalist. It was when I was working at a radio station called Eagle Radio in Surrey that I started working shifts in education as well as in news.
So working with kids, teaching them about radio presenting and journalism and stuff, and it was off the back of that I thought, gosh, wouldn’t it be useful for young people who are producing a lot of online content and media and sharing material, for them to learn about media law as well? Because, you know, as they say, we’re all journalists now.
That’s how I ended up doing online media law and got some funding from our local police and Crime Commissioner, which meant we could go into huge number of schools, 50 or so schools a year, 10,000 or so kids a year, across the county getting education on law and ethics to do with social media. Off the back of that I got asked to do a PhD research project on young people’s perspectives of law and crime and policing online. So I guess you could say I’m an accidental academic really!
Neil Fairbrother
We’ll come back to your research findings later because I think there’s some very interesting things in there, but if we go back to some basics, first of all, what do we mean by an illegal act? Insofar as online is concerned? What is an illegal act?
Dr Holly Powell-Jones
The kinds of things that I cover in my training for schools and for young people, probably going in order of most important downwards, I would say. Firstly, we teach them about sharing indecent images, the law around what’s sometimes called sexting or revenge porn, stressing the illegal nature of sharing those kinds of images. We also talk about harassment online, online abuse and threats, kind of malicious or threatening or menacing communications online.
We talk a bit about hate speech, material used to incite hatred and violence towards people, for example, on the grounds of race, religion, or sexuality. We also talk about things like anonymity provisions, people who are entitled to an anonymity such as sexual offenses claimants or children involved in court proceedings and a bit about contempt of court. And as if that wasn’t enough, we also talk about civil rights online as well, that will include things like an introduction to defamation law, and a bit about privacy and copyright.
Neil Fairbrother
All of that sounds pretty fantastic, but if you place yourself in the context of a young teenager who is maybe 12 or 13 on social media, they’re not going to bear all of this in mind are they, before they send a message or something? They’re not going to go through a tick list of am I able to send this? Is this okay?
Dr Holly Powell-Jones
Well, they’re certainly not going to, if nobody’s ever told them about what is or isn’t illegal, that’s kind of where I’m coming from. Yeah, of course, certain things might be common sense, or might seem like common sense, not to send people threats. But actually, my research has shown that there are quite a lot of young people who maybe don’t see that as a criminal risk to the sender.
I’ve had a lot of students say to me things like, “Well that can’t be illegal because I see stuff like that online all the time”, and so the idea that their perceptions might actually not match up to the laws that we have is a really important gap in knowledge. I can’t promise that everyone who sits in my training will adhere to the law, but I certainly think it’s useful for them to know about it as a starting point.
Neil Fairbrother
So is a defence then, if a child ends up being prosecuted in some way, shape or form, “I didn’t know your honour.”?
Dr Holly Powell-Jones
Exactly. You’ve hit the nail on the head. The idea that ignorance is not a defence is one that is quite sort of enshrined in law. I do think there’s got to be a common-sense approach to it. The crown prosecution service will weigh up the evidence given to them by Police and particularly in the cases of people under 18, it would have to be in the public interest for them to proceed with a prosecution.
Police and the CPS are not keen to criminalize our children. However, there are certain times and certain examples of behaviour where it would be in the public interest to prosecute even an under 18-year old for certain behaviour. But it’s very context specific, so they would look at the particulars of that individual scenario.
Neil Fairbrother
The hot topic at the moment is “sexting”, that’s quite often talked about and the law is pretty clear, I’ve talked about this before in other media, that for a child, someone under 18, to possess an intimate photo, that in itself is illegal and then to share it is also therefore illegal and to receive it presumably is illegal. Although if you’ve received something, there’s not much flow control. You can’t do much about the receipt…
But, here’s the but, if you are, for example, between the age of 16, the age of consent and 18, and you are in a consensual relationship and sexting is seen as part of the normal process, a part of that kind of relationship, the police probably wouldn’t prosecute even though technically it’s against the law.
Dr Holly Powell-Jones
Well I think that’s where it gets really interesting and really complicated because people think the law is very much black and white and the legislation in principle might be. But remember that we have judges subjectively interpreting the law through their sentencing and case law in terms of how that legislation is interpreted.
Even at a very individual level, police officers will be making subjective decisions about what to charge people with, or whether to charge people, et cetera.
It’s not always very clear cut, and I do think there’s this idea that we can go around saying to young people, it’s illegal, it’s illegal, it’s illegal until we’re blue in the face. But we also need to acknowledge the cultural norms and the social norms for their own lives and their own peer groups, because those are going to be as powerful, if not more powerful than what the law tells you is and isn’t allowed. And that’s why it’s really important to listen to young people’s perspectives on these issues and not just weigh in as an adult and say, you can’t do this, you can’t do that.
Neil Fairbrother
So it’s about the context?
Dr Holly Powell-Jones
Totally.
Neil Fairbrother
Okay. So, the law versus terms and conditions. Now we know that there is a minimum age to be on social media, which is usually but not always 13, and that’s there because of another law, the COPPA law, which is a US-based law. If a child in the UK is under 13 and he or she’s on social media, are they breaking the law or is it simply terms and conditions?
Dr Holly Powell-Jones
Well, this is what’s interesting as well because my understanding is that terms and conditions constitute an agreement and I’m pretty sure you can’t sign a contract until you’re 18, so we have these grey areas. We have commercial law like you talked about, advertising law, then we have criminal law…
But I think that where it gets complicated is what do we mean by child and what do we mean by adults? For example, in this country you are technically a child until 18, there certain things you can’t do till you’re 18; sign a contract, get married, etc, but you can be held criminally responsible from the age of 10.
You can’t legally own a pet until you’re 13, you can’t have sex until you’re 16 but you can’t share indecent images till you’re 18, so what we’re talking about here is a process of becoming an adult, which is stretched out over many, many years. And we’re trying to put on top of that legal rights, risks and responsibilities at different age stages. But I think it’s very confusing because why do we have such a difference between, for example, the age at which you’re allowed to have a contractual agreement with someone versus the age at which you could be prosecuted for a crime, for example.
Neil Fairbrother
So could you end up with a situation where a child argues the case that the contract with the social media company, i.e. the terms and conditions, are null and void because they’re too young?
Dr Holly Powell-Jones
That’s a really interesting question and one you would probably have to ask a lawyer, she says dodging it completely, because that’s not my area of expertise. But I think that would be a really interesting case to watch if that’s something that could be done.
Neil Fairbrother
So the GDPR has been an attempt by the European Union to tighten up on privacy. And in part, this has been a reason why one of the social media companies I think Snapchat, has raised its minimum age to 16, at least as far as its European operations is concerned. Is this a good thing? Do you think this is an area that law or regulations at least, the law, have been applied to the good as far as children are concerned? Should all social media sites have a minimum age of 16?
Dr Holly Powell-Jones
What I like about GDPR and the new Data Protection Act 2018, is that it is trying to give more rights to the subject of data, which I think is very, very important. What we’re talking about here are principles and rights. You have a legal right to privacy under Article Eight of the European Convention on Human Rights, and that is how subjects can exercise some control and some power through things like GDPR in terms of what is or isn’t appropriate for companies to hold about them.
But I think there’s another question with law, which is enforcement. It’s all very well enshrining rights, in principle, in law. But actually, it’s also important to look at how people are educated about those rights and how they can enforce those rights. Because if you’re not educating people that they have those rights and you’re not making sure that the procedures are in place so that people can enforce those rights, it’s just a symbolic and not a very practical act.
So, I’m very much at the end of the spectrum where I want to educate people about their rights and try to give practical support to people who want to do that. Changing the law in principle doesn’t change people’s behaviours in practice all the time, unless it is enforced [and they’re] educated.
Neil Fairbrother
So, to get social media companies to change, you need some kind of enforcement?
Dr Holly Powell-Jones
Yes.
We’ve got to have an ongoing conversation about how that would be done, because there’s a lot of concern, it seems, about the kind of the impact on business and commerce if we tighten up regulations and restrictions on social media companies amongst other things. So it needs to be an ongoing conversation.
And for me, I worry that it’s a very, very small number of people sitting together behind closed doors in quiet rooms talking about these things and actually we need to make it part of a wider public debate. I probably would say that because I used to be a journalist, but what I would like to do is to tease out what the issues are and have a more public conversation about it because it does involve all of us and social media companies.
Remember that the content that is on social media sites is not produced and distributed by the social media companies, it’s produced and distributed by users. It’s all of us who are on that site and using it. So there’s a difficult balancing of responsibilities here.
Neil Fairbrother
If the content is produced by us, and if we just refocus on to children, and we look at something like cyberbullying. Cyberbullying itself, as far as I’m aware, is not an illegal act?
Dr Holly Powell-Jones
It depends, doesn’t it? It really depends. I really don’t like the term cyberbullying because I think it covers a whole range of behaviours, some of which are a bit unpleasant or a bit mean but are not breaking any kind of law. Then you get to areas where people might be having their privacy breached, or lies spread about them, and you’re getting into law-suit territory if that was happening between adults. And then you have criminal offenses being committed like harassment for example, online harassment.
I would like us to use the correct terminology for the different behaviours and not to just lump everything under an umbrella of cyberbullying because I think that’s quite unhelpful for people like parents, teachers, but also for the victims in establishing what’s actually going on here.
Neil Fairbrother
One of the behaviours that does happen under the umbrella term of cyberbullying, whether you like that term or not, but let’s just use it just for the time being, is that a fake profile will be set up by some children, which might be a fake profile of another child and they use that profile to say malicious things about that child. Is that an area of defamation? Is that a libellous thing?
Dr Holly Powell-Jones
Yes, absolutely. It could be a defamatory. You’ve got defamation, which is a civil lawsuit where somebody could get an injunction or damages, but it could potentially be a criminal offense under the Malicious Communications Act as well. It could also constitute harassment. There have been cases where people have been prosecuted for online harassment under the Protection from Harassment Act 1997, which is about a course of conduct, repeated behaviour, that causes an individual alarm or distress.
Neil Fairbrother
And that’s very close to some of the definitions of bullying or cyberbullying as advocated by people like the Anti-Bullying Alliance, for example.
Dr Holly Powell-Jones
Exactly. And actually, I think it would change young people’s and adults’ perception of the seriousness of what is happening if we called it harassment rather than calling something bullying. Because my research with young people shows that there isn’t a clarity in terms of their understanding of the law. And I think that’s because we’re sometimes we are not using legal and criminal terminology where it might actually be helpful.
Neil Fairbrother
If we used legal and criminal terminology, would that be something that children would relate to?
Dr Holly Powell-Jones
Vocabulary is important and children will relate to whatever adults talk to them about basically. I’ll give you a real-life example from my study. My young people were very, very good at recognizing racist content. They would look at it, they would point at it, they would discuss it, and they would say that is racist.
They were not quite as good at recognizing and labelling homophobia. I had a couple of examples that were homophobic and there was a bit more of a debate about “Is homophobic or is it not? I’m not so sure”. Then you get onto sexism and misogyny – not mentioned once amongst young participants. So that’s interesting.
That makes me think as a journalist, as someone who’s interested in society and culture, we are having the right conversations to equip children somehow on some levels, in some cases, to recognize and label things as racist. But we’re not having the same conversations around sexism and misogynistic behaviour. So basically children, we’ll have conversations about topics if we open up the discussion and give them the vocabulary and the language tools to do so.
Neil Fairbrother
So we need to be more precise over the terminology we’re using rather than simply labelling everything that’s bad as cyberbullying or cyber-abuse?
Dr Holly Powell-Jones
Potentially. I suppose there are times where it [using “cyberbullying”] might be useful but from my perspective, my worry is that young people who are victims of some quite serious events online, might not recognize themselves as having been a victim of crime and being deserving of intervention and support from adult authorities.
That’s a problem for children who are being victimized, and equally, I’m going to say it, children who are offenders. I don’t want children to grow up to be perpetrators any more than I want them to be victimized.
And actually, if young people don’t understand that what they’re doing is a criminal offense, I do think that will affect how seriously they take their own behaviour and how much they worry about it or think about it or, or change that behaviour. So, it’s actually good for children on both sides to understand of when something is serious and when it deserves some kind of intervention.
Neil Fairbrother
We’re dealing with human nature and we do know that human nature can be influenced by the legal frameworks that are put in place. If we look at drink driving, for example, we look at the seat belts, we look at smoking.
So are we playing a long game here where we need to put in place very clear guidelines, actually not just for children but for all of us because adults get cyberbullied, cyber-abused, call it what you will, and children will see that behaviour will probably copy it. But if the [legal] constructs, if the frameworks, are made clear enough and strong enough then that should influence behaviour, change human behaviour over time.
Dr Holly Powell-Jones
But the interesting word that you’ve used there is “should”, and I would be a very annoying sociologist and bring it back to the question of well, who gets to decide? Because we are not a homogenous group of people with identical moral frameworks. We all have a different idea of what kinds of behaviours should be allowed and which ones should not.
And that’s where we have to be a bit careful. I don’t want to point the finger at anyone, but my understanding is that there are lots of very senior people in government and in law and even in technology, who don’t understand a lot about the lived experiences and reality of young people online. And so it’s really, really important that we make sure that young people who are big stakeholders in this kind of thing get to feed into the debate as well.
Because we know from existing studies that there are differences generationally between what people think is acceptable to post online or do online. And, not to simplify it too much, but a load of old fuddy-duddies saying to kids, you can’t do this when actually it was quite normal and acceptable for kids, that worries me a little bit. So it’s always a question of who gets to decide who’s doing the “shoulds” part of the conversation.
Neil Fairbrother
But we do know that there are consequences of today’s online behaviour; there was the very well-known case in the press a few years ago with the young children’s police commissioner, Paris Brown. Unfortunately for her, what she had previously posted came back to bite her quite badly, but she’s being challenged by the very people that you’ve just described who don’t have the knowledge of understanding of what’s acceptable or what’s deemed to be acceptable by children online, even if that behaviour is at the very least pushing the boundaries of some of the neat law categories.
Dr Holly Powell-Jones
Yes, absolutely. I talk about that case study with young people, but I actually talk about it with journalists as well – I’m also a media law and ethics lecturer and trainer for trainee journalists. And I actually think that’s a really interesting one in terms of saying what kind of behaviour do we think is acceptable from the press as well.
To me trawling through people’s tweets from years ago is a bit ethically similar to trawling through people’s bins. If you’re looking for mucky dirt to pull up on people with the deliberate intention of just ruining their prospects, I don’t think that’s useful and ethical journalism.
And that’s not to say that people shouldn’t be held accountable for things that they have said and things that they have done. But I worry about a future dystopian society where anybody who’s ever expressed a controversial thought ever in their life will be sort of barred from public life and publicly shamed. We do need to be a bit careful and have an ongoing conversation about what kinds of behaviours online we are willing to forgive and move on from, and which we think should leave a permanent stain for people.
Neil Fairbrother
From your work you’ve done with young children in schools, are they open to having an awareness of the legal issues that surround being online, or do they just want to forget all of that because it’s boring and they just want to get on and have fun?
Dr Holly Powell-Jones
It’s all about the way you teach it. I don’t go in and say “Sit down kids, I’m going to read you some legislation”. I go in and say, “I’m going to tell you a story”. It’s a true story about what happened involving some different people. And then I’m going to give you three options of what you think happened at the end of the story.
I’ll tell a story and it will be a real-life case study. I’ll let them have a minute to discuss it with the people around them, and then they’ve got to vote on outcome A, B, or C. Then I will reveal what the outcome was and we talk about why that is in relation to the legislation.
That is, I find a much more effective way of teaching it because first of all, you’re telling them a story, you’re putting it into context, and secondly, you’re not wading in telling them stuff. You’re actually starting by asking their opinion and asking them to discuss it and give feedback. And only then will they then be like, well, actually this is what happened. So I think that’s the trick to getting young people interested in these issues.
Neil Fairbrother
Okay. Now, I spoke with Adrienne Katz in a previous podcast episode, and we talked in part at least about the preparedness of schools across the country, at least in England and Wales, for the education of children in terms of bullying and cyberbullying. And the view from the research that Adrienne had done was the schools were not well geared up for educating children on bullying and cyberbullying for sure. And I’m imagining now when we get into the world of digital and media rights, the schools are even less geared up for that.
But it sounds to me as if it might be something that should be much more important. Is there room for this in the national curriculum and do schools have the right kind of training in place and the right kind of people and the knowledge?
Dr Holly Powell-Jones
Absolutely it needs to be on the curriculum, because the way that we ran this fantastic project throughout Surrey, we were lucky enough to at the time have some Police and Crime Commissioner funding. But that was only limited to Surrey so it was bordered around the county. And there are certain practitioners who can only work in schools that are able to pay for those services, so it’s not getting out to everybody and it’s not going out consistently.
My understanding is that teachers really, really don’t want to be landed with extra responsibility, or to have to swat up on law or something that they don’t know a lot about. They would like to have an external expert come in and put together programs for them, so I do think it needs to be on the curriculum, and I do think it needs to be something that is rolled out consistently and fairly across all schools around the country.
Neil Fairbrother
In terms of the right to be forgotten. Are children aware that they have this right? Have they used it? Do you know of any case cases where they’ve been used it successfully or otherwise?
Dr Holly Powell-Jones
That’s not something that I cover particularly in my workshops with young people. It is something we talk about a lot about in journalism, media law and ethics lectures because obviously it’s relevant to journalists who are trying to look up or publish information about people to be aware of that.
The right to be forgotten for children I think is a very important one though and I would definitely refer to the digital 5Rights campaign, which has been working specifically around children’s rights in that area. And they’re doing some fantastic work around the right to be forgotten as a child who publishes material online, when you become 18, you ought to have more control over erasing that content, or getting companies to get rid of that data that they’ve held on you and gathered since before you were an adult. So I agree with that.
Neil Fairbrother
And do you think this might be one of the reasons why Snapchat is such a popular thing because of its transitory, impermanent nature, unlike Facebook, for example, or Twitter, where there is this lengthy, lengthy archive of everything you’ve ever produced.
Dr Holly Powell-Jones
Oh, definitely. The research really shows that young people are leaning much more towards private messaging apps than they are to kind of public static things like Twitter or Facebook. They’re much more likely to be on Whatsapp and Snapchat because it is instant messaging, it’s here and then it’s gone.
And my research with young people does show that a lot of them do see online communication as a fleeting impermanent thing. But of course, if your data is all being gathered, then it might not be as instant and as fleeting they think it is. That’s where it starts to get a bit tricky actually; the cultural construct of the communication being fleeting, but actually the technological footprint still remaining.
Neil Fairbrother
You talked about the digital footprint in some of your work. What do you mean by “Digital Footprint”?
Dr Holly Powell-Jones
This is basically data that can be tracked and looked up about all of us in relation to our behaviours online and we see it absolutely everywhere. I was Googling flights to Pizza the other day, I’m off to Italy in a couple of months, and I was looking at some flights and then a little while later I logged into Facebook and there you go, there’s an advert for a flight to Pizza, right in front of me! I got married last year as well and suddenly I’m getting wedding adverts left, right, and centre, you know.
I think we need to definitely have a look at some of those algorithms and the ethics of those because particularly for me as a journalist and somebody who’s interested in opinion online, I find it a bit worrying that the architecture of social media means you are shown more of what you like and what you have engaged with and you get shown more of it. And then we get into the area of echo chambers and filter bubbles, which is not great for democracy and critical thinking.
Neil Fairbrother
Yes. And, and in the case of the child, which is really the focus of all of this, is for them, they may grow up in a what they perceive to be normal, but it’s actually abnormal.
Dr Holly Powell-Jones
Well, I think that’s always happened. I mean, what gives me hope for the younger generation is that we’ve always grown up in echo chambers to a certain extent. Your childhood, what would have been normal to you would have been what was normal to you. It was what your family and your friends and your neighbours and people in your community did, how they lived their life.
I do think what’s different for young people growing up now is actually that the Internet and social media is potentially opened up a whole world of competing norms, ideology, ideas. And that’s wonderful in one way, but it’s also terrifying in another.
How are young people meant to make moral decisions when the Internet is full of such ridiculously different competing ideology? That’s where I think we now need to be careful about particularly some quite extremist views and the ease of which that can be appealing to young.
Neil Fairbrother
Therein lies the conundrum and perhaps your education program is part of the solution?
Dr Holly Powell-Jones
Well, I would hope so. I mean I’m very old school in that I like to go in with paper, paper handouts and have a physical conversation kind of in the classroom a discussion that’s very, very face-to-face. And I think that’s important as well. Technological solutions are great and very, very important.
Where I fit in I think is more your back to basics, social solutions. So having conversations about rights, about respect and also giving young people a chance to practice discussing their opinions, sharing ideas and asking questions in a safe environment that’s off the record. I won’t affect their digital footprint.
Neil Fairbrother
Holly, I think we’ve run out of time. Thank you so much for coming in. It’s been an absolute joy to meet you again and very interesting talking with you.
Dr Holly Powell-Jones
Thank you so much. Indeed. Thanks so much for having me.