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Is cancel culture a cry for legislation?

Natalie McEvoy

Is the baying crowd online a form of virtual vigilantism in respect of an ill-defined lacuna where the law has failed?

Forty years ago, the oldest known webpage was created. Today it is estimated that there are more than 6 billion webpages, and that more than 75% of those are social media pages. The sheer volume of content becomes a force for good when it comes to information exchange and connection building, but a real challenge in terms of the innate unpredictability of people; overstepped opinions and inappropriate comments abound.

We can all point to examples of times when social media commentary performed for the greater good (for example, communities standing up for minority members to drive out a bully, or consumers demanding more accountability from their favourite brands when it comes to climate change), but likewise I’m sure we can also easily recall examples of “cancel culture”, where an individual is socially excluded by the group (or “cancelled”) in relation to a past action or isolated comment.

In a liberal and lawful society, the majority are able to invite debate and accommodate opinion. So why do so many public figures fear “cancellation”? As with any human task, there is an element of unpredictability in how real-time interactions are received, and assessment of the written word can be far more unforgiving than the spoken word, where tone and mannerisms help convey intent.

Is the baying crowd online a form of virtual vigilantism in respect of an ill-defined lacuna where the law has failed? Would individuals call out the actions or comments they deem offensive or unlawful so ferociously if the law fulfilled that function?

The term “cancelled” is used to express the audience disengagement that a speaker experiences after saying or doing something that has been found objectionable or offensive by the many. I am reminded of Alexandria Ocasio-Cortez’s opinion on those who claim cancellation;

“People who are actually ‘cancelled’ don’t get their thoughts published and amplified in major outlets. The term ‘cancel culture’ comes from entitlement - as though the person complaining has the right to a large, captive audience, & one is a victim if people choose to tune them out. Odds are you’re not actually cancelled, you’re just being challenged, held accountable, or unliked. I have an entire TV network dedicated to stoking hatred of me. A white supremacist w/ a popular network show regularly distorts me in dangerous ways, & it’s a normal part of my existence to get death threats from their audience. You don’t see me complaining abt ‘cancel culture’.”

AOC makes a pertinent point regarding substance over label of course; if we can hear your defence then you haven’t in fact been cancelled, though you might of course lose income or opportunity as a consequence of mass disapproval. Fair enough, one might say.

Social media is largely self-regulated at present, save in relation to specific causes of action such as data protection, copyright and defamation which allow us lawyers teeth to demand action in relation to online content. Without pressure, social media platforms self-start infrequently. For example, there have been vanishingly few examples of a social media user losing their platform entirely; Donald Trump and Katie Hopkins’ removals from Twitter being two of the most publicised.

Trump and Hopkins’ both considered Twitter acted unjustly; bowing to pressure to reinforce a prevailing user atmosphere of social cancellation. Hopkins is, in fact, an interesting example of cancellation reach; the same divisive, outrageous opinions which once made her the most bookable devil’s advocate on daytime television have now caused her bankruptcy (at the hand of libel actions), unemployability and even deportation from Australia. Such dramatic cancellation by her own keyboard had little equivalent in a pre-social media era.

As media lawyers, we know first hand that the default position of social media platforms tends towards resistance to intervene in relation to user content. However, the international dynamic is decisively towards external regulation of social media. Change is coming. Here in the UK, we know that a statutory duty of care for social media companies is under consideration. Amongst other information gathering exercises, a White Paper recently closed in relation to the abuse of intimate images online, as part of which, views were collected on regulation far broader than its title. Regulation is surely on the way, but not at social media pace.

The likes of Facebook and Twitter have perhaps been too slack in their user identification requirements which may have helped disincentivise bad behaviour online by removing anonymity, and too slow to remove or report content where it crosses the line, such as in relation to hate and offensive speech, dangerous misinformation and incitement to violence. What they perhaps considered low down the business priority list could become the shackles on their dancing feet.

Consider physical policing and the effect that its visibility and impact has on the prevailing sense of calm. Nations who have undergone periods of weak policing, where local law enforcement is considered inadequate and untrusted, have time and again self-appointed citizens to undertake enforcement without legal authority. Informal policing in this manner is recognised as transitionary; often the last resort of the unprotected; but by its nature hugely volatile. After all, power corrupts.

So is cancel culture in fact transitionary? Across platforms and age groups, men and women are roughly as engaged as each other on social media. Social media is accessible and democratic; a veritable Court of public opinion. Perhaps vocal cancel culture is a reaction to the woeful under-regulation of social media; the main modern-day form of networking and communicating. Has visible under-legislation over time led to a sense of legitimising user-policing? And will it therefore temper in a future, regulated environment? Time will tell. Meanwhile, the old adage tells us that none of us can please all of the people all of the time, but those with a public profile have little to fear if they hold themselves to account before they type, in anticipation that the public will absolutely do the same.