The UK government is considering blocking access to social media sites in the wake of this week's riots in London and elsewhere, but is this really the right way to go?
Criminal activity involving or facilitated by social media is fairly new, and while talk of potential blocks has stirred up some heated debate, the legal system has been adapting quickly to the new reality.
Among the hundreds of arrests for looting and violent behaviour have been a significant few for inciting criminality using social media. The arrests were made by the South Wales Police, which said it is continuing to monitor social networking sites with a view to tracking down anyone using social media to generate disorder.
These arrests, along with the recent "Twitter Joke Trial", which involved an alleged threat to blow up an airport, and the 2009 obscenity case involving a blog featuring the fictional kidnap and rape of Girls Aloud, are examples of the fact that criminal behaviour online is every bit as punishable as it is offline.
"Users can't always hide behind their profile picture, and increasingly the police will be monitoring their activity," said Steve Kuncewicz, IP and social media lawyer at Manchester-based law firm Gateley.
The arrests coming out of the riots show how old law, and sometimes newer law, is being used alongside new technology to deal with criminality online, he said. The arrests so far have dealt with offences under the Public Order Act 1986 and the more recent Serious Offences Act 2007, which in particular prohibits encouraging or assisting offences. Kuncewicz said arrests for this kind of activity on the web are a new and landmark application of the existing system.
These acts can be used alongside the Communications Act 2003, which deals with misuse of a public electronic communications network to send a message of menacing character, or the Malicious Communications Act 1988, which deal with "malicious" messages to cover virtually all social network misuse.
Controversially, the prime minister is now suggesting that messages promoting criminal behaviour should be blocked or deleted from social networks and anyone convicted of using them to incite social disorder be banned from using them.
But this is not entirely without precedent. "We have seen bans handed out as part of ASBOs previously, as well as bans from contacting other users in harassment cases, but this is something new and will no doubt raise concerns over whether or not this will have any impact on the individual right to freedom of expression under Article 10 of the European Convention on Human Rights, although this can be restricted in the interests of public safety, national security or the prevention or detection of crime," said Kuncewicz.
Other relevant legislation includes the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. In this regard, Orange and T Mobile are already assisting the police in obtaining information on rioters who used their network.
Blackberry maker Research in Motion (RIM), however, and the social networks themselves, such as Twitter and Facebook, are based outside the UK, so it is hard to see how the UK government can force them to take action, said Kuncewicz.
Home secretary Theresa May is scheduled to meet all three companies in the coming days to discuss the role of social media in the riots, but details of the planned talks have not been disclosed.
"However, it is remembering that if a network is taken down or access cut off, we will lose the chance to do more than receive messages inciting criminality; we will also lose the right to trace those behind the messages as quickly, to get real news on the ground out to the public and media, and to coordinate clean-up groups, which has been the greatest benefit coming out of the recent unrest," said Kuncewicz.
Even if Twitter, Facebook and Blackberry were based in the UK, changing the current position - where social networks must delete or block material which they would be liable for disseminating, as and when they are notified of it being on their servers, to escape liability - to force them into a more active role policing their users would represent a major shift in the government's internet policy.
"These riots were just as much squashed by social media as they were exacerbated by it - the platforms involved are neutral; the users are to blame. Monitoring rather than banning is, I think, a much better solution here," concluded Kuncewicz.