Mai Chen: Regulators need to run to catch social media

The upside of social media is that it levels the playing field. Chris Cairns in his days playing for the Chandigarh Lions. Photo / AP

The power of social media such as Twitter, Facebook and blogging to exponentially increase the damage of defamatory statements to reputations and the difficulty of protecting privacy in this internet age has been on vivid display lately.

* Chris Cairns' successful defamation case against Indian Premier League boss Lalit Modi, who had posted a Twitter comment alleging that Cairns was involved in match fixing. The court found that only 65 people followed the original tweet and about 1000 people read the Cricinfo article before it was taken down (Cricinfo subsequently settled with Cairns out of court). But the court found that this should not mean damages should be reduced because "nowadays the poison tends to spread far more quickly". The tweet went viral after thousands re-tweeted it.

* The "teapot tape" saga over the recordings Bradley Ambrose made of the Prime Minister and the Hon John Banks during the election campaign last year.

* ACC's breach of privacy in wrongly releasing thousands of claimants' details to a person who allegedly then attempted to blackmail ACC to give them back. The alleged blackmail attempt and its alleged perpetrator were also leaked to the media, along with an email from former National Party president Michelle Boag to the Minister for ACC, Judith Collins, on the matter.

* The Ports of Auckland dispute where the worker fronting media on the Maritime Union's concerns had his private details about the large amount of time he took off work on full pay during the terminal illness of his partner leaked to a blogger.

* The leaking of Mfat salaries and allowances as part of the controversy around substantial restructuring in the department. A Twitter account, has also been set up by a disgruntled staffer with some confidential information on the restructuring.

These examples demonstrate the power of social media, and that the right to privacy has never been so important, yet it is not even a right protected under the Bill of Rights Act.

The financial review which has just been completed by the Government Administration select committee reports that the Ombudsmen's office is on its knees. It does not even have the money to assign investigators to more than 300 complaints, and has asked for an extra $1 million on its budget.

However, if greater funding is to be given, the Privacy Commissioner is surely a needy recipient due to the greater intrusions on people's privacy through the internet and social media.

The Privacy Commissioner receives only $3.4 million dollars to deal with all privacy breach complaints, and this budget has not increased since 2006.

Access to truthful information is in the public interest, and well founded allegations will still be able to be reported.

The news gathering exemption that exists will always ensure the media can continue to do its job, despite the Privacy Act. But urgency needs to be given to the Law Commission's review of regulatory gaps and the "new media" - ie. social media and blogging, and any recommendations it makes should be given priority consideration by government.

The upside of social media is that it levels the playing field. It is cheap and accessible, and its speed, ease of use and accessibility greatly improves the ability of citizens to express their views and to mobilise.

The wave of popular uprisings during the "Arab spring" would not have happened in the same way without Twitter and Facebook. And workers, public servants or corporate whistleblowers can more easily leak information into the public domain.

But using social media to criticise or expose also has its downsides. A client has told me that a big NZ corporate was using his website to find "dissidents" and then calling them for a quiet chat.

The cost of repairing damage is immense. Even Chris Cairns had to take his case on a "no win no fee basis". Lalit Modi now has to pay almost £1.5 million ($2.9 million) in costs and damages. His tweet has cost him around £53,846 a word.

Cairns' successful case is one of the first high profile instances where magnified damage to reputation using Twitter has been challenged, but for the majority of the population who cannot afford to bring such action, a cheaper tool which is still effective needs to be devised.

Social media is here to stay. What we need now is for the regulators to catch up.

Mai Chen is a partner in Chen Partner and author of Public Law Toolbox.