Northern Ireland Legal Quarterly <p>The <em>Northern Ireland Legal Quarterly</em> was established in 1936 as&nbsp;a general legal research journal published quarterly by the School of Law at Queen's University Belfast.</p> <p>The journal is published online four times a year. The journal considers prospective articles on all areas of law&nbsp;and from all methodologies. At least one article per issue is made available on an open access basis. All articles become available on an open access basis one year after publication. If you are interested in submitting an article to the NILQ, please see our '<a href="">For authors</a>' section.</p> School of Law, Queen's University Belfast en-US Northern Ireland Legal Quarterly 0029-3105 Introduction: Caught in the web: capturing the zeitgeist of ‘Big Tech’ companies, social media speech and privacy <p>N/A</p> Paul Wragg ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 397 401 (Re)embracing social responsibility theory as a basis for media speech: shifting the normative paradigm for a modern media <p><em>Dave Egger’s fictional book </em>The Circle<em> tells the story of an all-powerful new media company of the same&nbsp;</em><em>name that seeks to totally monopolise its market and remake the world in its image. To achieve this The&nbsp;</em><em>Circle advocates the unregulated sharing of all information, at all times, regardless of its source and&nbsp;</em><em>irrespective of the consequences for individuals, society and the state. Although the dystopian view of reality&nbsp;</em><em>presented by the book is perhaps slightly extreme, it does not take any great leap of faith to see how we could&nbsp;</em><em>all end up as ‘Circlers’, particularly because the underlying normative rationale that drives The Circle is&nbsp;</em><em>what currently underpins online speech in reality. Libertarianism and the inherently libertarian arguments&nbsp;</em><em>from truth and the marketplace of ideas have historically underpinned the notion of the Fourth Estate and&nbsp;</em><em>have a ‘hold’ on First Amendment jurisprudence. In recent years, libertarianism has emerged as the de facto&nbsp;</em><em>normative paradigm for internet and social media speech worldwide. Although the theory’s dominant position&nbsp;</em><em>fits with the perceived ethos of social media platforms such as Facebook, its philosophical foundations are&nbsp;</em><em>based on nineteenth and early twentieth-century means of communication. Consequently, as illustrated by&nbsp;</em><em>issues such as filter bubbles and Facebook’s reaction to fake news (bringing in a third-party fact-checking&nbsp;</em><em>company) which conflicts with the platform’s libertarian ideology, as well as the European Court of Human&nbsp;</em><em>Rights consistently placing the argument from democracy at the heart of its Article 10 ECHR&nbsp;</em><em>jurisprudence, rather than the argument from truth and marketplace of ideas, this normative framework is&nbsp;</em><em>idealistic as opposed to being realistic. Therefore, it is not suitable for twenty-first-century free speech and the&nbsp;</em><em>modern media, of which social media is no longer an outlier, but a central component. Thus, this paper&nbsp;</em><em>advances the argument that a normative and philosophical framework for media speech, based on social&nbsp;</em><em>responsibility theory and the argument from democratic self-governance, is more suitable for the modern&nbsp;</em><em>media than libertarianism. Further, it justifies a coercive regulatory regime that also preserves media&nbsp;</em><em>freedom.</em></p> Peter Coe ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 403 431 Learning from the laws of the sea, Foucault and regulatory theory: proposing a ‘regulatory harbour’ model for the regulation of social media that serves rather than rules the waves <p><em>This paper will make a modest case of the regulation of social media. Improved rule-making comes when&nbsp;</em><em>the means of securing compliance is shaped having regard to the particular problem at hand, rather than by&nbsp;</em><em>clinging to the notion that rules shape the world. Through a consideration of the regulation of the sea, this&nbsp;</em><em>paper has served to illustrate that regulation is possible. In the context of social media, where individuals&nbsp;</em><em>work constantly on their self-identity and perform self-development though expressive activities in public, the&nbsp;</em><em>use of social media sites can represent what Foucault described as techniques of the self. This paper proposes&nbsp;</em><em>a theoretical and methodological approach to thinking about the regulation of social media as conceptualised&nbsp;</em><em>in an iterative and dynamic model that is characterised by the technologisation of human interaction and&nbsp;</em><em>increasingly transparent ways of living in an age of ‘technologies of the self ’. This approach will facilitate&nbsp;</em><em>a more critical, responsive and iterative awareness of the regulation of expressive content in a way that can&nbsp;</em><em>grow with the technological state of the art, alive to cultural sensitivities and the use of the tools as a vessel&nbsp;</em><em>for self-development.</em></p> Laura Scaife ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 433 473 Weapons of mass distraction <p>The Circle<em> invites an ever closer look at the ethos of current and emerging surveillance technology. Dave&nbsp;</em><em>Eggers’ novel foreshadowed the culminating moments in 2018, when high-powered social media platforms&nbsp;</em><em>generated a maelstrom of controversy in the US and UK and then nothing changed. Concern over the&nbsp;</em><em>integrity of electoral processes around the globe has risen to new heights, as privacy experts warn that&nbsp;</em><em>unfettered growth of surveillance capitalism could change democracy forever. Far from a case of unintended&nbsp;</em><em>consequences run amok, corporate tech executives admit that continual mining of personal data for&nbsp;</em><em>unrestricted use by corporations and political operatives that specialise in psychological manipulation were&nbsp;</em><em>part of the original design. The dark side of all this connectivity as highlighted by the ruckus over&nbsp;</em><em>Cambridge Analytica places mainstream news producers squarely under the microscope. This article&nbsp;</em><em>examines the wilderness between the goal of reporting in the public’s interest and the current role of&nbsp; news&nbsp;</em><em>organisations.</em></p> Robin Barnes ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 475 512 Fakebook: why Facebook makes the fake news problem inevitable <p><em>The current ‘fake news’ phenomenon is a modern manifestation of something that has existed throughout&nbsp;</em><em>history. The difference between what happens now and what has happened before is driven by the nature of&nbsp;</em><em>the internet and social media – and Facebook in particular. Three key strands of Facebook’s business model&nbsp;</em><em>– invading privacy to profile individuals, analysing mass data to profile groups, then algorithmically curating&nbsp;</em><em>content and targeting individuals and groups for advertising – create a perfect environment for fake news.&nbsp;</em><em>Proposals to ‘deal’ with fake news either focus on symptoms or embed us further in the algorithms that create&nbsp;</em><em>the problem. Whilst we embrace social media, particularly as a route to news, there is little that can be done&nbsp;</em><em>to reduce the impact of fake news and misinformation. The question is whether the benefits to freedom of&nbsp;</em><em>expression that social media brings mean that this is a price worth paying.</em></p> Paul Bernal ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 513 530 Stealing ‘souls’? Article 8 and photographic intrusion <p><em>In Article 8 ECHR privacy right jurisprudence, photographs are deemed distinct forms of information that&nbsp;</em><em>are particularly intrusive in nature. This article is concerned with explaining why this is so. Part 1 examines&nbsp;</em><em>the notion of ‘intrusion’ itself. It argues that ‘intrusion’ functions as a legal metaphor and plays an&nbsp;</em><em>important role in constructing a binary between an outer self presented to the world and a ‘spiritual’,&nbsp;</em><em>emotional interior that privacy purports to protect from transgression. Part 2 argues that this ‘spiritual</em><br><em>intrusion’ metaphor is influential in the continental personality right that informs the ECtHR’s approach&nbsp;</em><em>to Article 8 protection for photographed individuals. This leads to potentially stronger protection for image,&nbsp;</em><em>including a basic Article 8 right to control one’s image. Yet there is a divergence of approach in the English&nbsp;</em><em>courts, where personality theory has limited influence; here there is traditional scepticism towards an image&nbsp;</em><em>right and photographic capture is largely neglected. Part 3 argues that photography becomes a relevant factor&nbsp;</em><em>at publication stage, where courts agree that the distinctive features of the medium may cause or exacerbate&nbsp;</em><em>intrusion. This is because photography creates a permanent, infinitely replicable ‘truthful’ record of the&nbsp;</em><em>individual’s image that can be disseminated to the objectifying gaze of a mass audience. But the medium also&nbsp;</em><em>leads viewers to overlook its inherent complexities and ambiguities. Ultimately, Article 8 jurisprudence,&nbsp;</em><em>particularly in the ECtHR, occasionally adopts reasoning that contains echoes of the ‘photographs steal&nbsp;</em><em>souls’ mythology.</em></p> Rebecca Moosavian ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 531 558 Book Review: Media Law by Jacob Rowbottom <p>N/A</p> Peter Coe ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 559 560 Trends: Problematically proactive: a summary of recent legal developments in the field of internet intermediary liability <p>N/A</p> Michael Russ ##submission.copyrightStatement## 2018-12-07 2018-12-07 69 4 563 569