Should Social Media Influence be Recognised as Property?

Carn, Matthew

Abstract

It is trite to say that the question of whether ‘things’, or res, should be categorised as property in English law is one of great importance. Yet confusion still clouds this issue despite centuries of academic and judicial discourse. Should such a categorisation of property be found, proprietary rights in that thing may then be supported, which afford advantages far superior to those available to holders of mere personal interests. Conversely, the finding may prove highly detrimental to others who hold competing claims over the property, a policy factor to which courts have historically, and continue to be, sensitive.

Despite the serious ramifications that may flow from successful admittance into the category of property, a universal and binding definition of property has proved elusive. Instead, despite its somewhat problematic nature, the test for determining what may be considered an object of property continues to rest with that provided by the House of Lords via its seminal judgment in National Provincial Bank v Ainsworth. For those who study this area of law or are required to apply it in practice, this understandably poses numerous issues.

A review of literature on the topic identifies three main themes: 1.) the use of land as a template for property; 2.) property defined not as a ‘thing’ but instead as a bundle of rights dictating a person’s relationship with that thing; 3.) the categorisation of property as either choses in possession or choses in action. While imperfect, this situation has resisted change despite innovations, from social to technological, affecting the way property is viewed by both academics and the judiciary. The recent emergence of digital assets and similar resources, which defy traditional classifications of property, however, has further highlighted the limitations of such traditional analyses in English law.

With respect to these new assets, social media influence is arguably the most extensive and yet it remains the least understood when viewed through a proprietary lens. Despite its relatively recent emergence over the past two decades, social media influence has proliferated rapidly and exponentially increased in importance. It is held and created by tens of millions within the UK alone, a prized resource for those able to acquire it and intensely coveted by many who do not. Beyond its actual and potential commercial value, social media influence is often a barometer of status within peer groups of all ages, leading many to seek it as an asset purely for its inherent social value. While the Law Commission and bodies such as the UK Jurisdictional Taskforce (UKJT) have released several comprehensive publications concerning digital assets, these have chosen to focus on more conventional objects such as cryptocurrency, non-fungible tokens (NFTs), digital files, and digital records. As a result, social media influence, despite its prolific status as a digital asset in the UK, has been largely ignored.

Examining the idea of property in law in England and Wales, it may be demonstrated that social media influence does indeed have the potential to be recognised as an object of property; should this be the case then it may also support powerful proprietary interests that may be vindicated by those who claim them. The proven flexibility of English law to adapt to new socio-economic circumstances further increases this prospect, a fact so recently demonstrated by developments on the proprietary status of more conventional digital assets.

Apart from any arguments as to why social media influence could be recognised as property, an altogether separate question arises as to whether it should. The motives for extending the analytical model of digital assets beyond its current boundaries, to embrace social media influence and bring it under the same aegis of property, are numerous and justifiable. The most basic imperative is moral: the satisfaction of a public good by protecting those things of greatest value to individuals through the recognition of their proprietary rights.

Whether social media influence is a good fit for classification as property is an issue that is yet to be determined judicially but it is one that will likely need to be addressed in the near future. For many, it has become their most valued asset, and one over which protection will inevitably be sought via the vindication of proprietary rights recognised by the courts

• Journal Article Type: Article
• Acceptance Date: Dec 16, 2024
• Deposit Date: Jan 27, 2025
• Publicly Available Date: Mar 7, 2025
• Journal: Trust law international
• Print ISSN: 0962-2624
• Peer Reviewed: Peer Reviewed
• Volume: 38
• Issue: 4
• Pages: 181 - 201