Social media, the European Court of Human Rights, and apex courts in the United Kingdom: Contested competence at at time of constitutional change

This chapter explores the interaction between the European Court of Human Rights (ECtHR) and two apex courts in the United Kingdom, the United Kingdom Supreme Court and the Scottish High Court of Justiciary, focusing on social media cases. It explains the nature of the “bridge” created between the ECtHR and domestic courts by section 2 of the Human Rights Act 1998 and the considerable influence that Strasbourg case law has had on certain areas of domestic law, including areas such as privacy that are highly relevant for social media communications. Political opposition to a number of ECtHR rulings has resulted in recent Government proposals to curb the influence of the ECtHR, though with an ongoing, if qualified, commitment to freedom of expression. Diverse judicial perspectives on the relationship between Strasbourg case law and the development of the common law also influence the extent to which Strasbourg jurisprudence is articulated and relied on in domestic cases. In practice, relatively few social media cases have found their way to these apex courts, and the possible reasons why developments in this area have been largely left to the lower courts are explored.