Aberdeen law student Iakov Shuvalov examines GDPR’s effectiveness in regulating ‘freemium’ business models, where ‘free’ services may compromise privacy

In the digital age, data has been regarded as the currency of the future. As a result, data is an asset that has grown in value and in its need for protection, and that is why the European Union (EU) implemented the General Data Protection Regulation (GDPR) in 2018. Aiming to empower individuals with control over their data and establish stricter privacy standards, the GDPR promised a paradigm shift and has received praise. However, a closer look reveals a critical shortcoming: the GDPR’s struggle to effectively apply, particularly to freemium models, a business model with significant presence in the average person’s life due to social media.

In the age of ubiquitous online services, the concept of “free” often comes at a hidden cost: our personal data. Freemium business models, particularly prevalent in social media platforms, thrive on collecting and monetizing user information. The current application of the GDPR falls short in its ability to regulate businesses that rely on data collection and monetization as their core revenue stream. This is because the application of the GDPR suffers from critical flaws in several areas, these being in the initial drafting and wording of the GDPR, in the GDPR’s application, and in the GDPR’s enforcement.

Issues in application

Widespread non compliance

A central argument for the GDPR’s ineffectiveness lies in the demonstrably high rate of non-compliance among websites. A web-scanning service analysing the 100 most popular websites in each of the 28 EU member states revealed a concerning lack of GDPR adherence. This study, while limited in its ability to definitively identify non-compliance within a website’s entire system, clearly demonstrates that many websites lack even the most basic GDPR implementation measures on their public interfaces. This widespread disregard for the regulation casts doubt on the ability of the GDPR to achieve its goals of data privacy protection.

This disregard is particularly worrying within the freemium landscape, where data collection and monetization are central to the business model.  Unlike other websites, data collection and user profiling are core functionalities for freemium services. Non-compliance with the GDPR in these areas directly undermines the service’s ability to operate its business model. But the most significant concern here is that if the GDPR is not effectively enforced within this sector, users are left unaware of how their data is being collected and used.

Issues in enforcement

Disproportionate impact

The GDPR’s application creates a concerning imbalance between small and medium-sized businesses (SMBs) and large corporations, particularly those operating under freemium models. While achieving GDPR compliance is crucial, the resources required – legal expertise, technical security measures, and ongoing data practice maintenance –  pose a significant burden for SMBs. These businesses often lack the financial and technical muscle of their larger counterparts.

This disparity creates a two-tiered system where resource constraints force many SMBs to fall short of full compliance, leaving them vulnerable to legal repercussions while for freemium social media giants whose business models rely heavily on data collection, potential GDPR fines become a mere cost of doing business. Their vast resources allow them to navigate GDPR complexities with relative ease.

This uneven playing field undermines the very purpose of the GDPR – a level playing field for data protection practices.  Currently, the system favours large corporations, particularly those in the freemium space. This stifles competition and innovation within the digital economy, as smaller businesses become discouraged from adopting data-driven technologies for fear of non-compliance.

Overall enforcement issues

The effectiveness of the GDPR in curbing privacy violations by freemium businesses is further hampered by significant challenges in its enforcement. While the GDPR outlines hefty fines for non-compliance, several factors create a lacuna in which freemium giants are less likely to face serious consequences.

One issue is the resource constraints of DPAs. Data Protection Authorities (DPAs) in each EU member state often lack the resources to adequately monitor and investigate the complex data practices of large, international freemium platforms. Furthermore, freemium services often operate across multiple jurisdictions. This makes it difficult for DPAs to determine which authority has oversight and hinders effective enforcement action. In addition to this, investigating large-scale data breaches or complex privacy violations involving freemium models can be a lengthy and time-consuming process. This delays any potential penalties and weakens the deterrent effect.

These enforcement challenges create a scenario where freemium businesses may be more likely to gamble on non-compliance. The potential for hefty fines may seem less threatening when weighed against the vast resources these companies possess and the complexities involved in pursuing enforcement actions. This ultimately weakens the GDPR’s ability to effectively protect user privacy within the freemium landscape.

Issues in drafting

Loopholes and subjectivity

The GDPR’s reliance on the concept of “legitimate interest” as a legal basis for data processing introduces a significant loophole and element of subjectivity. While the GDPR outlines situations where “legitimate interest” might apply, it ultimately leaves companies with a degree of discretion in interpreting this clause. This subjectivity creates a risk of freemium services prioritizing their own interests over user privacy.

For example, the concept of “legitimate interest” can be used to justify the placement of certain cookies without obtaining explicit user consent. This raises concerns, as freemium business models can potentially interpret “legitimate interest” broadly to encompass a wide range of data collection activities. The lack of clear guidelines and the potential for abuse of this clause weaken the GDPR’s ability to ensure user control over their data.

Cookie notices

The GDPR’s reliance on cookie notices to inform users and gain consent for data collection presents a particular challenge. While intended to empower users, cookie notices often achieve the opposite effect in the freemium context.

As highlighted in a study by Advance Metrics, a staggering 76% of website visitors either ignore cookie banners altogether or simply click through them without engaging with the content. This behaviour stems from several factors such as many cookie notices being intrusive and disrupting the user experience, leading to frustration and a desire to dismiss them as quickly as possible. Another point to note is that the complex nature of cookie categories and the sheer volume of information presented overwhelm users, making it difficult to understand and manage their consent preferences. Finally, when faced with the choice between a seamless browsing experience and delving into complex cookie settings, users often prioritize convenience and sacrifice some control over their data privacy. It is for this reason that as of now there does not exist a lucrative market for businesses to sell enhanced privacy to their customers.

For freemium services, cookie notices become a flawed system that fails to achieve the GDPR’s goals of informed consent and user control over data. The pressure to access the “free” service and the complexity of cookie notices create a situation where users are unlikely to engage meaningfully with them. This ultimately undermines the effectiveness of the GDPR in protecting user privacy within the freemium landscape

Conclusion

The GDPR’s noble aim of protecting user data privacy faces a challenge of growing significance and importance in the freemium landscape created by social media. While the regulation outlines a framework for user control and data protection, its current application struggles to effectively address the practices of freemium business models. The widespread non-compliance, subjectivity of the “legitimate interest” clause, and ineffectiveness of cookie notices all create loopholes that freemium giants can potentially exploit.  Furthermore, the challenges of enforcement leave these companies with a lower risk of facing serious consequences for privacy violations.

It is clear that the current application of the GDPR falls short of its intended purpose. Moving forward, a re-evaluation of the regulation and its enforcement mechanisms is necessary. This may involve strengthening enforcement measures, clarifying subjective elements within the regulation, and exploring alternative approaches that incentivize user privacy alongside innovation. Only through such changes can the GDPR truly empower individuals and create a more secure and transparent digital environment for all.

The ongoing evolution of the digital landscape demands a robust and adaptable data protection framework. By addressing the shortcomings of the GDPR’s application within the freemium space, we can move towards a more balanced approach that protects user privacy without stifling innovation. Only then can the GDPR truly fulfil its promise of empowering individuals and fostering a more secure and transparent online environment, especially for users who rely on valuable “free” services offered by freemium businesses.

Iakov Shuvalov is a final year law student at the University of Aberdeen and has interests in Cybersecurity and Data Privacy Law.

Why law?

For those embarking on the punishing task of training contract applications for the first time, wondering how the hell you’re going to sit through a partner interview without coming off like a gibbering mess, this one’s for you!

Maybe you’re even a veteran in the field of law firm interviews, having smashed out so many vac schemes and mini-pupillages that you’ve got your interview technique down to a T, this one’s guaranteed to take you down memory lane.

We’re compiled a list of 10 hilarious TikToks about law firm interviews. Let us know which one’s your fave in the comments.

Can’t really remember what marks I got tbh …

@legalcheek Land Law and Equity & Trusts really let the team down #CapCut #babyreindeer #lawyer ♬ original sound – legalcheek

If we’re being honest

@legalcheek Let’s be honest #babyreindeer #lawstudentlife ♬ original sound – legalcheek

But my biggest strength is teamwork

@legalcheek I bring a certain Gen Z mindset to the function #lawyersoftiktok #lawmemes #lawstudent ♬ original sound – legalcheek

@legalcheek NQ pay is how much #meme #lawschool #lawstudent #lawstudentlife #student #university #lawyersoftiktok ♬ original sound – Dessirae

‘I’m a perfectionist’

@legalcheek I genuinely forget how to put a sentence together #CapCut #Meme #studentsoftiktok #lawstudent ♬ original sound – legalcheek

Mr Worldwide

@legalcheek Mr worldwide #lawyersoftiktok #lawstudentlife #yearabroad ♬ original sound – legalcheek

You’re my favourite dish

@legalcheek The questions need to be clearer….#CapCut #Meme #studentsoftiktok #lawstudent #fypシ゚viral #trainingcontract #law #fyp #students ♬ original sound – legalcheek

Shady’s back, back again

@legalcheek This ain’t my first rodeo #law #lawstudent #lawschool #lawyersoftiktok #nohardfeelings #fyp ♬ No Hard Feelings_Now on Google Play – lovelove

Does Netflix count?

@legalcheek Time to panic #lawyersoftiktok #lawyer #lawschool #university #student #fyp #lawstudentlife #Meme ♬ original sound – legalcheek

Thank you, next

@legalcheek Next question#Meme #MemeCut #lawyersoftiktok #student #lawstudent #fypシ #trainingcontract #law #lawyerlife #fyp ♬ original sound – legalcheek

Follow Legal Cheek on TikTok

A round-up of online musings, memes and more

SQE: who can call out the regulator? [Helen Pamely on LinkedIn]

“In general, business attire means smart dark office wear…” [Jason Gifford Head on X]

Quoth the Bar Council:

“In general, business attire means smart dark office wear. This will usually
mean a black, dark grey or dark blue suit with tie for men…”

On my train, I am the only person with a tie. Few have a jacket.

Is “business dress” as archaic as a wig & gown?

— Jacob Gifford Head (@gifford_head) June 26, 2024

‘I’ve always been very vocal about the fact that practicing the law from an early age has helped me immensely with my studies… that was until the SQE’ [Maia Crockford on LinkedIn]

My law firm starting XI [Luke Mitchinson on LinkedIn]

Employed barrister expresses frustration over inability to sign off QWE [
Natalie Connor on LinkedIn]

“You might’ve forgotten to attach a file…” [Aidan James on X]

the face Outlook is doing when it says “you might’ve forgotten to attach a file” pic.twitter.com/03lYwNu5Qf

— Aidan James (@mcandidate) June 26, 2024

“Just happy to be here guys” [ Legal Cheek on Instagram]

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It didn’t take long…

If you don’t know about TikTok’s viral ‘Of Course’ trend by now, then you’ve clearly been living under a rock. The online trend has quickly become a social media sensation, inviting users to share light-hearted stereotypes about their professions or identities, and recently law students have joined in on LawTok.

If you’ve ever pulled an all-nighter fuelled by caffeine or found yourself glued to your textbooks in the library, you’ll definitely relate to these TikToks.

@legallyamrutha We’re law students, of course this is how I take breaks between 4 hour study sessions #lawtok #lawschool #lawstudentsbelike ♬ original sound – LegallyAmrutha

In this TikTok video, four law students express the joys of studying law including drinking coffee more than they drink water. Another let us know just how precious time is as there is no time to do much else, besides study. After all, you can have a break and get your steps when you’re walking to the law library.

Many commented to agree to the trend with one particular student saying: “barely going outside & studying on a weekend is so real.” I think it’s fair to say law students won’t be getting much sun this summer.

Another commented that she became “immune to caffeine during law school.” And said she would have four shots of “espresso on ice” to replace her three square meals.

Another law student commented that she drank five red bulls and was still able to get some shut eye.

Another relatable struggle in the video is the strain all that reading has on your eyes, leading most law students to take out an eye prescription, including those that started law school with “20/20 vision”.

In the comments, a fellow law student admitted she was “basically blind” as a result of staring at small texts and screens for 10 hours at a time. She added that this is made worse if the lighting in your law library isn’t great.

Another student shared that he had never worn glasses before law school and now has to wear an eye patch due to how much law school has done “a number” on him. Someone in the comments advised law students to use “blue block glasses” which are designed to eliminate eye strain and improve deep sleep.

This trend has even caught the attention of Hogan Lovells‘ graduate recruitment team.

@hoganlovellsgradsuk Our trainees in our Birmingham office had to hop on this trend. Of course they find HL ducks in their office! #HoganLovells #OfCourse #DefinedByDifference #LegalJourney #Law #fyp #GraduateRecruitment ♬ PLAYOFFS – HYMN & Slip.stream

They joke: “we’re Hogan Lovells trainees, of course we play table tennis on our lunch break!”

Other law students at the University of Westminster joke about “always dressing in black and white”, “looking like a secret agent” and “already being busy in first year”:

@demi.adewakun We’re law students… This was very fun to film. NB: The tree part was a joke referring to the amount of paper used as law students. We love and respect nature over here! * * * #ofcoursetrend #lawstudent #university #universityofwestminster #friends ♬ original sound – Oluwademilade

Christianah Babajide is a legal marketing expert. She can be found on LinkedIn and her Instagram handle is @christianahb_.

Legal Cheek readers call for cheaper fees, better exam rooms, past papers and more

Since Legal Cheek exclusively revealed last week that law firms were rescinding training contract offers from students who failed the SQE on their first attempt, social media has been flooded with criticism of the solicitors’ assessment.

With this in mind, Legal Cheek took to its busy socials to ask its law student and lawyer followers: how do you think the SQE can be improved?

It’s evident from the responses we received that the cost of the exams is a source of annoyance. One lecturer and solicitor took to LinkedIn to write: “… the costs of the examinations bear no relation to reasonable expense and are clearly out of step with agendas of widening participation, diversity and open access.”

Another unhappy follower also called for a reduction in exam fees and suggested students with a law degree be exempt from SQE1. The “whole system needs revising!” they wrote. “Nothing accessible about it unfortunately.”

Currently, exam fees for SQE1 amount to £1,798, and for SQE2, £2,766. However, self-funded students must additionally bear the expenses of a preparation course, which can vary from a couple of thousand pounds to well over £10,000. Students are also required to pay the full exam fees again for resits.

“The exams, introduced to improve accessibility indisputably make the profession less accessible,” another follower wrote on Instagram. “Candidates are fumbling in the dark without clear direction, have to take annual leave to study for the exams, and I met a few candidates who had to take a bank loan to fund the endeavour. As well as this, City law firms are still internally peddling the view that TC’s are the superior method to qualification whilst SQE + QWE is spoken about as being inferior.”

Making changes to the exam venues, the IT and the practicalities of sitting the SQE also seem high on the agenda when talking improvements.

“[The] centres are categorically not the right venue for these exams,” claimed one SQE student. “I personally experienced a protracted distraction during one of the written exams… while other candidates I know experienced outages, frozen screens and delays.”

Another commenter went as far as to suggest that the SRA “needs to sack” SQE assessment provider Kaplan. “The SQE has been plagued with issues since its launch in 2021,” they said. “Considering the cost of the exams, the IT platforms simply aren’t fit for use.”

Another reader suggested the “locations and [exam] rooms should be appropriate,” before claimng that their oral exams were conducted in a “re-arranged hotel bedroom”. Continuing, they said “given you’re in a closed room with only one examiner this can be uncomfortable for some people. A meeting room or classroom is more appropriate”.

Along with adding more (appropriate) exam locations, they go on to say that “exam day rules should be reasonable to reduce on-the-day stress” and “it’s not necessary to ban water during the exams”.

Other readers also raised concerns with the pass rate. “Right now it is clear that the numbers of those successfully completing the SQE exams is far too low,” one concerned follower wrote. “When students with extensive and high-level experience from within legal practice are unsuccessful then it is clear that there is a worrying disconnect between training provider outcomes and the final examination requirements.”

They continued: “A first step would be ensure that a more open dialogue exists between the SRA, Kaplan and training providers to ensure that the high expense of taking on formal training is directed towards best preparation.”

“The use of an MCQ/best answer format is clearly at odds with the actual requirements of the job role in practice,” they continued. “We are looking for analytical and creative minds who can provide the best service to clients — we do not need people with eidetic memory — although I did quite enjoy watching Mike Ross in Suits.”

Improving the study materials was also a suggestion that featured heavily across Legal Cheek’s socials. This comment on Insta summed up the mood:

“A more specific specification or a textbook [should be] provided by Kaplan so that different providers can standardise the information required to be taught. Split the exams to smaller chunks by subjects. Provide a few past papers (the sample questions on the website are not an accurate representation of the level of difficulty).”

Many commenters went as far as calling for the SQE to be scrapped and replaced with its predecessor the Legal Practice Course.

How do you think the SQE can be improved? Let us know your thoughts in the comments.

Annabel Field, a graduate in history and currently pursuing her PGDL studies, shares her thoughts

One of the most overwhelming things for new law students is the sheer number of cases they are expected to learn. The idea of having to memorise what feels like a million cases for an exam is incredibly daunting. Understanding both facts and principles is only half the battle with applying them to questions, incorporating statutes and understanding exceptions a separate battle. It is important therefore to make committing cases to memory as easy as possible.

One of the best ways to understand case principles (and subsequently remember them) is to also know the facts. The phrase, “the dead snail in the bottle which led to liability,” is a lot easier to commit to memory than, “Donoghue v Stevenson, you must take reasonable care to avoid acts which you can reasonably foresee would be likely to injure your neighbour”. To attempt to understand facts and principles, I decided to make short videos ‘acting out,’ the facts of legal cases, and subsequently stating the vital principles. I kept these on my phone to watch back during less formal study days and after passing my exams I posted a number of these clips on the social media platform TikTok.

@annakbek Trying to finish all the basic cases #law #lawstudent #fyp #study #lawrevision #tortlaw #alevellaw #pgdip ♬ original sound – Annabell

The response to my videos has been amazing, lawyers, students, teachers and even those with no connection to the legal profession have expressed interest in my content. Whilst the original reason for making these videos was to make case law more memorable for my own personal studies, it has been amazing to see that I am both helping other students and providing entertainment. It was the responses from others which made me understand the true value of using social media as a tool for networking. The chance to speak to students with similar interests and share advice has been invaluable. A number of those with more established legal careers have also reached out offering advice and expressing support for the content I am creating.

Most people are familiar with LinkedIn, with many firms branching out onto Instagram to share information regarding job positions, insight days and relevant news topics that can be consumed in a more welcome and user-friendly way. Many students follow firms’ social media pages to get a better understanding of what the firm does. The informal nature of social media encourages interactions which perhaps would have been omitted during an in-person interaction.

It is true that many are sceptical of apps like TikTok — with its famous algorithm known for causing hours of scrolling. However, the often-overlooked part of not only TikTok, but social media as a whole, is the positive impact it can have.

Although it is true that the apps we use nowadays can harbour content to feed our procrastination (because who doesn’t love a cat video), they can also help people learn. From languages and skills to acting out legal cases, the positive potential is large.

In a society where most people are consumers of social media there is potential to use this as a tool. Many students, firms, and lawyers are aware of podcasts and an increasing number of law firms are now producing their own. As the population becomes increasingly online there is merit in utilising social media.

From the engagement I have experienced as a result of using social media I have connected with dozens of like-minded individuals. Many of whom aren’t law students themselves but are still engaging with the content and wanting to learn more. Despite the original purpose of my account being to assist in my own understanding of cases, I am excited that my content has reached more students like me and helped them on their own studies. This is a genuine example of how utilising the potential of social media apps is beneficial to consumers, and creators.

Annabel Field is a first-class History graduate from the University of Kent. She is currently a PGDL student and her TikTok handle is @annakbek.

So. Much. Cringe.

Striding around in smart suits and delivering polished speeches, lawyers can sometimes be idolised, likened to omniscient beings beyond mere mortal humans. In their crusade for justice and intellectual dominance, these figures are often praised, admired, and occasionally worshipped.

As it turns out, however, even those with the shiniest shoes and silkiest statements can trip up. Courtesy of The Secret Barrister, a large degree of professional humility, and an outdated misconception that tweets, or X’s?, aren’t publicly visible, we’ve put together a selection of legal tales to remind you that lawyers aren’t always as smooth as they may seem.

So sit back, procrastinate that email for five more minutes, leave the contract reading for later, and enjoy our top nine responses to The Secret Barrister’s request for “your embarrassing court stories”.

A warning to every John Smith

In the cells increasingly fractious conference with female client who insisted case had absolutely nothing to do with her. About to advise psychiatric assessment. Transpired Holloway had sent a woman with exactly same name as my client.

— Max Hardy (@MaxJLHardy) October 14, 2023

HHJ Honeybun

Return to work post maternity leave. High court trial. cross examining expert. Eye2eye contact to put baby brain away. Hear distracting noise to one side. It doesn’t stop.Extend a hand with hand up ‘wait’ kinda signal.Say ‘hang on a minute honeybun’. Silence falls. ‘Noise’=judge

— Prof Jo Delahunty KC (@JoDQC) October 14, 2023

A classic legal manoeuvre

Of course, along with so many others, I have the “flip seat flipped up when I was on my feet and I sank to the floor as I sat down” story. In my case however, having recovered from the embarrassment, I managed to get up & then immediately did exactly the same thing again.

— Crimsolgirl (@CrimSolGirl) October 14, 2023

Guilty of being in the wrong place at the wrong time

Fully wigged and gowned ready to go. Decided to wait in Court. Sat in non-secure dock thinking it was the public gallery.

— Laura Paisley (@PaisleyLaura) October 14, 2023

It doesn’t get much worse than this…

Court of appeal 2006 , arguing for a reduced sentenced for indecent images of children . I place my hand in my pocket to reach for a handkerchief while on my feet and pull out a pair of Dora the Explorer knickers belonging to my toilet training daughter .

— Jonathan Black (@jonblackbsb) October 14, 2023

Or maybe it does?

Week 1 of 2nd 6. Client late; I’ve been hiding in the loo. Finally they arrive. I go into court: “Sorry for the delay” NOT “Siri play”. Blink 182 at max volume ensues. The bench witnesses a pupil barrister blaring music, frantically beating his own chest in an attempt to stop it.

— James Lloyd (@James_M_Lloyd) October 14, 2023

‘For the benefit of the tape, we just cringed, a lot’

In interview at the cop shop, lent forward in my chair and thought ‘that feels odd’. Lent back and the seat of the chair dislodged and I fell to the floor. I squeaked on the way down. ‘For the benefit of the tape, the solicitor has fallen off her chair…’

— lex (@Lexytinks) October 14, 2023

Mistaken identity?

One I’ve told here before: In examination-in-chief, my first question to my client was “Is your name James Turner?”. Answer from witness: “No, but yours is.”

(Classic example of mind and mouth out of synch.)

— James Turner KC (@JamesTurner37) October 14, 2023

Bargain blunder

Last one. During hard times of pupillage I bought a suit in the sale at a supermarket. Spent a whole morning in the mags court with several clients. Only at lunchtime did a kindly usher tell me that I had “Sale £3” proudly displayed in a bright yellow sticker on my right boob.

— Crimsolgirl (@CrimSolGirl) October 14, 2023

If you’ve been affected by any excessive third party cringe, or have yourself been the victim of a hilarious barrister blunder or solicitor slip-up, the comments section (and an immortality of cringe) awaits…

‘Strike balance’ between human rights and professional obligations, says regulator

The Bar Standards Board (BSB) has issued fresh guidance on how barristers should conduct themselves online in a bid to clarify when it is likely to take regulatory action.

Following the conclusion of consultation earlier this summer, the BSB has this week approved new guidelines that look establish where the regulatory boundaries lie in relation to conduct that occurs outside the scope of a barrister’s professional practice.

The updated social media guidance gives a number of examples where the regulator may take action, including: “the use of language that is seriously offensive, discriminatory, bullying or harassing; linking to or reposting such content without indicating disagreement with it; gratuitous attacks on the judiciary or the justice system; or posting content which might breach client confidentiality.”

The regulator says such conduct on social media, both in a professional and personal capacity, may be of regulatory interest because it can have an impact upon public confidence in the barrister or the profession.

The guidance also seeks to make clear that it is the manner in which barristers express their views that is more likely to concern the regulator rather than the substance of that view — although it stresses the substance of a barrister’s view may also raise regulatory issues. You can read the guidance in full here.

The regulator says it has sought to “strike a balance” between barristers’ human rights and their professional obligations under the BSB Handbook in developing the new guidance.

“After carefully considering the wide range of responses we received to our consultation, these revised guidance documents provide greater clarity rather than indicating a significant change to our approach,” BSB director deneral Mark Neale said. “The documents explain more clearly how we will apply the existing rules and how we try to balance barristers’ obligations under the BSB Handbook with their rights under the Human Rights Act 1998.”

Responding to the update, Nick Vineall KC, chair of the Bar Council, said:

“The Bar Council welcomes the new guidance from the BSB. As we know from our own ethical enquiries service, issues relating to social media and barristers’ private lives can be difficult to navigate. We think that the BSB has struck the appropriate balance, and it is right that the regulator focuses on the use of language that is seriously offensive, discriminatory, bullying or harassing. There is absolutely no place for bullying or discrimination, online or offline, at the bar.”

He added: “The bar ought to be a profession where everyone is capable of maintaining civil discourse. Regardless of where the line is drawn in terms of professional misconduct, there will be a huge space where comment that does not amount to misconduct is nevertheless unkind, unnecessary, and profoundly undesirable. Ultimately, if you would not say something to someone’s face, don’t say it to them, or about them, on social media.”

The Legal Cheek Virtual Pupillage Fair Series 2023 takes place over two dates: Saturday 7th October and Tuesday 12th December. Applications for October are now open!

TikTok and YouTube judged as main culprits for lawyers providing “off the cuff” advice

In a study published by the Georgetown Journal of Legal Ethics, lawfluencers (or lawyer-influencers) have come under fire for providing “rushed, poorly researched or even inaccurate” advice.

The popular trend of junior lawyers and law students providing careers advice for aspiring lawyers on social media platforms has been a positive and innovative way that those within the profession have been able to expand access to the field of law.

However, a distinct, growing form of law influencing — which sees qualified solicitors and barristers offering fast ‘legal advice’ to their audiences — has been found to contain certain “ethics risks”, with viewers receiving sub-par and even inaccurate legal information, according to new research.

Legal content creators are “significantly influenced by algorithms” on media platforms such as TikTok, according to the research paper, which encourages them to speedily push out content that consequently doesn’t meet the required benchmark to be considered professional work or advice. In return, the algorithm rewards them with more views, subscribers and, ultimately, income.

Some lawyers are even using the platforms to “build a new career entirely”, the paper found.

It raises concerns around unqualified lawfluencers who are blurring the lines between legal ‘information’ and ‘advice’, despite being unqualified to give the latter. Other ethical risks include building “inadvertent lawyer-client relationships” with viewers and concerns over breaches of fiduciary duties, including the duty of confidentiality.

The research concludes with the hope that lawfluencers “can act as the trusted voices within the crowd, filtering out the unreliable sources and information while continuing to ethically adhere to their professional duties.”

I think he did it but I just can’t prove it

The Secret Barrister, an anonymous bar blogger who often tweets about the plight of criminal justice, has returned to social media after an extended hiatus. 

And now they’re back, they’ve wasted not time in dealing with the big legal talking points — “How is Taylor Swift’s legal analysis in ‘no body, no crime’?”

There is something I’ve been reluctant to talk about.

I didn’t ever want to really talk about it. But the question has been asked, and if one person is thinking it, others may be too.

So I’ll address it head on:

How is Taylor Swift’s legal analysis in “no body, no crime”? pic.twitter.com/4041xJ5iqa

— The Secret Barrister (@BarristerSecret) July 24, 2023

In a Twitter thread, the mysterious legal personality posted a video with the lyrics to Swift’s song encouraging readers to “listen in full” before they proceeded to set out the case:

First though, house rules:

Unfamiliar with the full lyrics? Then take the time to listen *in full* before going any further.

If you haven’t read the sentencing remarks, you’re in no position to comment.https://t.co/6Bav82ducB

— The Secret Barrister (@BarristerSecret) July 24, 2023

On the track featuring fellow pop trio HAIM, Swift sings about a fictional character called ‘Este’, who, after learning of his adultery, is murdered by her husband. The ballad’s haunting main refrain accuses: “I think he did it but I just can’t prove it. No body, no crime.”

SB starts their Twitter thread analysis with the adultery, explaining the song’s legal inaccuracies and errors:

For the uninitiated, Swifty (and her associates, Haim) are expressing concern for Este, whose husband’s behaviour “smells like infidelity” – red wine stains, odd transactions on his bank statement etc.

I think he did it but I just can’t prove it. No body, no crime.

Sigh.

— The Secret Barrister (@BarristerSecret) July 24, 2023

There is much wrong with this. For one, Este, adultery has not been a criminal offence since the Matrimonial Causes Act 1857 abolished the crime of criminal conversation. So no crime has been committed *at all*.

But worse than that, she misunderstands the power of inference.

— The Secret Barrister (@BarristerSecret) July 24, 2023

Moving on to Este’s murder SB sheds some light on the misconception that a body is required for a murder conviction:

I think he did it but I just can’t prove it
no body, no crime

Now while Swifty is correct that the standard of proof in criminal proceedings – making a jury “sure” – is high, and “thinking” someone guilty is not enough, she now seems to think ‘no body no crime’ is *literal*.

— The Secret Barrister (@BarristerSecret) July 24, 2023

We even get a little case law thrown in:

Swifty is, with respect, overlooking R v Onufrejczyk [1955] 2 Q.B. 388, which confirmed that the fact of death can be proved by cogent and compelling circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found.

This is kinda basic.

— The Secret Barrister (@BarristerSecret) July 24, 2023

Things pick up pace as the song’s narrator avenges her friend’s death by murdering the husband, erasing key evidence, and indirectly framing his mistress. SB is quick to point out the narrator’s unlikely belief that a good clean-up will ensure the perfect crime.

…worse, Swifty’s own misunderstanding of the basics of criminal liability appears to have given her a sufficiently false sense of security for her to *proceed to murder the husband*, believing that as long as she hides the body, there is “no crime”.

This is just not true.

— The Secret Barrister (@BarristerSecret) July 24, 2023

For what it’s worth, the steps that Swifty claims to have taken – dumping the body in open water, cleaning the house “to cover up a scene”, lining up Este’s sister as a false alibi – these would all assist her in her defence should she ever be charged. But they’re no guarantee.

— The Secret Barrister (@BarristerSecret) July 24, 2023

Rounding off this Twitter-based analysis, SB notes:

So where does this leave us?

Not in a great place. Hubby is dead. Swifty has confessed to murder, undoing all her hard work disposing of the body & fixing an alibi. And Este, for all we know, may be about to return home from a deserved city break.

Public legal education matters

— The Secret Barrister (@BarristerSecret) July 24, 2023

The thread prompted a barrage of comments with public and legal professionals alike weighing in with their take. One commenter recalled: “I marked an exam answer from a student who managed to mangle this maxim further into ‘In order to prove murder, the death of the victim is not essential’.”

It’s not the first time the legal blogger has given us a mash-up of pop culture and legal commentary, in 2018 we were treated to a full analysis of Bananarama’s 1987 hit ‘Love in the First Degree’.

Welcome back SB.