The Online/Offline Cognitive Divide: Implications for Law

Abstract

While the online and offline realms continue to converge, this piece argues that a significant cognitive divide remains. This is especially the case as regards the use of social media. The structural mechanisms of these platforms encourage (and even propel) speech, which facilitates a unique cognitive environment for users; an atmosphere where individuals tend to be much more likely to engage in speech than in the physical realm. Many argue that such disinhibition is due to anonymity, but research has demonstrated that it is a more complex picture than previously believed. For the most part the law has ignored these distinct online characteristics, treating speech over social media as if it were “cafe” or “pub talk”. In fact most of the current UK legislation used to regulate speech over the internet, including of course speech over social media, was enacted before these neoteric services came into existence. While prosecution guidelines throughout the UK have been updated to include social media considerations, it is highly debateable as to whether they have proven effective in recognising social media as a unique cognitive environment. And although policies based around technological neutrality remain increasingly attractive to law-makers, especially as the online and offline realms become less distinct, it is important to remember that law cannot properly operate based on such real or perceived eventualities.