Media lawyers have today come out to defend social media in the midst of a heated national debate about the swelling power of Facebook and Twitter.
Speaking with B&T today, John Swinson, partner at firm KWM, and Hamish Fraser, partner at Truman Hoyle Lawyers said while much recent commentary on social channels was unpleasant, it could not and should not be censored by regulatory bodies.
Their comments come following a series of homegrown social media attacks, including a Twitter tirade on celebrity Charlotte Dawson which caused her to attempt self harm, and the current social media storm over 2GB's Alan Jones' claims about Julia Gillard's father's death.
The death of ABC staffer Jill Meagher in Melbourne last week also sparked debate when Facebook refused to pull down pages which featured hateful and violent commentary directed at Meagher's alleged murderer.
Fraser told B&T: "There have always been outlets for people to voice disgust at certain types of crimes that are committed… Social media happens to be what's available to us now."
Swinson agreed: "A lot of what's getting published lately is not stuff that’s illegal, it's just stuff that’s unpleasant or rude or 'not nice' social discourse.
"It's not necessarily illegal it's just a lot of unpleasant conversations taking place. Normally if you had two or three jerks in one place they'd say something stupid and no one would hear about it, but now they have the ability to become global publishers."
While mainstream media adheres to codes of practice to ensure standards of quality and accuracy, social media does not. While many pundits are criticising social channels for seemingly being able to "get away with" publishing content which would never make it to broadcast, Swinson believes censoring social channels would be anti-intuitive and inappropriate.
"One of the philosophies of social media is that you allow lots of speech and if you allow lots of people to speak and lots of ideas, the hope is that the better ideas will rise to the top and that ideas that are biased or prejudiced or not supported by facts will be drowned out by the volume of voices against them.
"So by having more speech you let the marketplace of ideas win out, rather than having some central censor who chooses which ideas are good and which are bad," he said.
The confusion around what is and what should be illegal on social media seems to stem fundamentally from a disconnect in the way people perceive the medium; that is, should it be considered a forum for open public discussion, reflective of everyday face-to-face chatter, or should Facebook and Twitter pages be considered as publishing channels?
Of course, when it comes to marketing the rules are now clear cut. The Advertising Standards Bureau recently determined that brands would be responsible for comments left by members of the public on their official profiles, meaning that the content of a site needs to comply with the rules for advertising, as contained in the AANA Code of Ethics.
But even that move has raised legal eyebrows.
"The effect of it is that businesses who choose to go onto social media are responsible for the consumer feedback they get on those pages," said Fraser.
"I'm personally a little troubled by that because I think that a Facebook page for a business is a little different than advertisements or a moderated website. It brings with it a moderation component which isn’t necessarily what Facebook is about."
But while Facebook may not instrinsically be suited to moderation, that's not to say it should be, or necessarily is, a lawless beast.
According to Swinson, the medium should and does self-regulate appropriately, and often to a greater degree than local mainstream media.
"You could say there are more laws applying to social media because Facebook has community rules as to what you can and can't do…On top of that you are in a global marketplace. It’s the world wide web so you might say more rules apply," he said.
One example he refers to is the marketing of liquor via social channels. Facebook profiles for alcohol companies must comply with the widely varied drinking age restrictions and drinking laws in different countries.
"Often people will say social media is lawless and my response is no you actually have more laws applying to social media and the internet than traditional because you have jurisdictional spread," said Swinson.
So, with so much discussion around the evils of trolling and the 'irresponsibility' of social channels right now, is it likely the government will seek to curb the way the medium operates?
"I think not," said Swinson. "If there is, it will probably be an overreaction to popular commentary rather than thought-out policy.
"What I think will happen is that companies such as Facebook and Twitter will start to look in more detail at these issues themselves because if people say 'Facebook is not respectful' or 'there's a lot of rubbish on it', it may start to effect the popularity of these sites.
"They don’t want people saying Facebook is not cool or accurate. If they start losing users they will self police."
According to Fraser, at the end of the day: "We have to learn what the rules are in the new world of social media and I don’t think the answer to that is clear yet".