Regulating #indyref: Social Media and the Scottish Independence Referendum Act 2013

Pages406-410
Published date01 September 2014
AuthorAndrew Tickell
DOI10.3366/elr.2014.0234
Date01 September 2014
<p>The social networking service Facebook was founded in 2004, followed by the micro-blogging platform Twitter in 2006. Nearly a decade on these social media services have expanded rapidly. As of June 2014 Twitter hosts 255 million monthly active users,<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>Twitter, <italic>About the Company</italic> (2014), available at <italic>https://about.twitter.com/company</italic>.</p> </fn> with Facebook recording 1.23 billion monthly active users worldwide.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>D Rushe, “Facebook posts record quarterly results and reports $1.5bn profit for 2013” <italic>The Guardian,</italic> 29 January 2014.</p> </fn> Scotland has not been exempt from these developments. A British Telecom study in 2012 found that Scottish households employ the internet for social networking more than any other part of the United Kingdom, with 48.2% of Scots making regular use of these platforms.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>Scottish Television, <italic>Scots use Facebook and Twitter more than other surfers across the UK</italic>, 29 May 2012, available at <ext-link ext-link-type="uri" xlink:href="http://www.stv.tv/Scotland/103728-internet-surfing-habits-of-scots-reveal-we-love-social-networks/" xlink:type="simple"><italic>http://www.stv.tv/Scotland/103728-internet-surfing-habits-of-scots-reveal-we-love-social-networks/</italic> </ext-link>.</p> </fn> In parallel, the availability of inexpensive or free blogging platforms and web-hosting has transformed anyone with a computer, internet-access and an opinion into a potential publisher, unmediated by the more traditional gatekeepers of the print press.</p> <p>The impact of these new media forms on political debate in Scotland has been considerably amplified by the independence referendum campaign, which has already seen unprecedented levels of online dialogue involving the official campaigns, political parties, traditional media outlets, bloggers, concerned organisations and interested citizens.<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>The impact of new media forms on the constitutional debate is currently being assessed by Dr Mark Shephard of the University of Strathclyde and others in an AQMeN/ESRC funded project. See further, <italic>https://</italic> <ext-link ext-link-type="uri" xlink:href="http://www.aqmen.ac.uk/project/socialmedia" xlink:type="simple"><italic>www.aqmen.ac.uk/project/socialmedia</italic> </ext-link>.</p> </fn> From an academic perspective the opportunity these platforms provide and the power of informal networks for the distribution of content have allowed substantial, direct and immediate engagement between the academy and the wider community. In the legal field, the Scottish Constitutional Futures Forum<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p>Available at <ext-link ext-link-type="uri" xlink:href="http://www.scottishconstitutionalfutures.org/" xlink:type="simple"><italic>www.scottishconstitutionalfutures.org/</italic> </ext-link>.</p> </fn> and the Future of the UK and Scotland blogs<xref ref-type="fn" rid="fn6"><sup>6</sup> </xref><fn id="fn6"><label>6</label> <p>Available at <ext-link ext-link-type="uri" xlink:href="http://www.futureukandscotland.ac.uk/blog" xlink:type="simple"><italic>www.futureukandscotland.ac.uk/blog</italic> </ext-link>.</p> </fn> have allowed Scottish scholars to make an unprecedented contribution to the national debate.</p> <p>With the commencement of the sixteen week pre-poll “regulated period” at the beginning of June 2014, this exchange of ideas is now subject to regulation under the <a href="https://vlex.co.uk/vid/scottish-independence-referendum-act-808307733">Scottish Independence Referendum Act 2013</a>.<xref ref-type="fn" rid="fn7"><sup>7</sup> </xref><fn id="fn7"><label>7</label> <p><span class="vid_spn">Scottish Independence Referendum Act 2013 sch 8</span> (henceforth the “2013 Act”).</p> </fn> This article considers the relevant provisions of <a href="https://vlex.co.uk/vid/scottish-independence-referendum-act-808307733">the 2013 Act</a> in detail, arguing that they fail to take recent developments in the practice of online communication properly into account.</p> REFERENDUM “PUBLISHING”: THE LEGAL FRAMEWORK

The legal framework for the referendum was established by an Order in Council,8

The Scotland Act 1998 (Modification of Schedule 5) Order 2013.

under section 30(2) of the Scotland Act 1998, which amended the list of reserved matters in schedule 5 of the Act to clarify that a referendum on Scottish independence fell within the legislative competence of the Scottish Parliament if certain conditions were met.9

Scotland Act 1998 sch 5 para 5A.

As the 2012 Edinburgh Agreement10

Scottish and Westminster Governments, Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland (2012), available at http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence .

between the Scottish and Westminster Governments made clear, these amendments would allow the referendum to be legislated for by the Scottish Parliament, with the Scottish Government and MSPs
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