Keeping pace with the Twitterati

Michael Gove’s ‘will he, won’t he’ legal aid review reached new levels of hysteria last week, as widespread reports suggested he was on the verge of back-tracking on the dual contract system. 

At the start of the week, the Lord Chancellor wouldn’t be moved on the subject but then, ?just a few days later, confirmed that his predecessor’s controversial proposals were ?to be scrapped, thanks, in part, to the legal challenges brought by criminal practitioners. ?It seems the justice secretary is for turning. 

The second 8.75 per cent fee cut is still set ?to happen, albeit with a stay of 12 months, ?but perhaps Gove has his eye on a £130m tax windfall from Google to make up the shortfall. Either way, the legal Twittersphere nearly exploded at the good news, with (most) lawyers expressing their gratitude towards Gove and scorn for his predecessor as yet another Grayling policy bit the dust.

Speaking of Twitter, I recently suggested that practitioners are best placed to advise on social media issues if they are familiar with at least some of the myriad platforms now available. I was surprised by how much support there was for this opinion which, if translated across to other areas of law, would clearly be nonsense. Do you need to have divorced to advise on matrimonial law? Been discriminated against to represent someone who has? Of course not – that would be ridiculous. But why?

Unlike family or employment legislation, social media is not yet entrenched in our common or statutory law. There is no ‘Social Media Act’ and nor is there likely to be. For now, this is problematic for the public, lawyers, and the judiciary. Without any clear guidance, we rely on judgement, guesswork, and experience. 

Several cases have progressed through ?the courts, but they are far from consistent. ?In employment claims, many of which go unreported, we have a handful of unusual decisions to advise on, which are unlikely to stand the test of time. I don’t blame the judges: they are hamstrung by their own experience ?(or likely lack thereof) in this fast-evolving sector, but clearly something needs to be done. 

As with anything new, the law in this area will, in time, settle and find its feet. We’re already seeing action being taken by the legislature to address some offences, such as revenge porn, but the response will be piecemeal and, in future, has the potential to be a knee-jerk and temporary solution. 

In the meantime, it falls to employers, the police, the Crown Prosecution Service, and us, as advisers, to formulate and regulate how this fast-paced area is shaped. By taking positive action, the behaviour of those who intend to cause harm, distress, or damage through social media, or who act maliciously, negligently, and ?who encourage others to do so, shall not be accepted. It is an opportunity we should ?not waste.

I’ll be discussing more on this fascinating topic and providing guidance for employment lawyers at Solicitors Journal Live on 15 and 16 March at Canary Wharf. As well as dedicated practice area-specific sessions, there will be an opportunity to quiz our expert panel of senior solicitors, barristers, and judges, and to hear from our keynote speakers, Lord Woolf and the Law Society president, Jonathan Smithers. I once again look forward to seeing you there. 

To learn more about Solicitors Journal Live visit ?bit.ly/SJLIVE2016.

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