Tweeting On the Wrong Side of the Law: Part 2

Since our post last week, Attorney-General Dominic Grieve has published court advisory notes on how contempt laws apply to Internet users. This shows that the Government recognises the huge dearth of awareness amongst UK citizens when it comes to tweeting and the law. It also comes in the wake of the public apology made by Peaches Geldof, the daughter of Bob, who may face a criminal investigation for tweeting the names of two mothers whose babies were abused by singer Ian Watkins. It is worth, therefore, delving further into the laws that can take us from the Twittersphere to the Courtroom.

The identities of sexual assault victims are protected by the Sexual Offences (Amendment) Act 1992, which contains the provisions that Peaches may have contravened. This same law applies to media organisations as it does to social media users, although not many of the latter seem to know it. In April 2012, seven men and two women were fined after pleading guilty to naming, via twitter, the rape victim of convicted footballer Ched Evans. All nine admitted they did not know they were breaking the law. The victim in Ched Evans’ case was named in over 6,000 tweets.

Ryan Giggs, also a footballer, was named in over 75 000 tweets as pertaining to an injunction over an extramarital affair. No action was taken against these Twitter users for contempt of court by failing to respect Giggs’ right to anonymity. However, Twitter users could potentially face prosecution if the subject of a super-injunction is revealed. Celebrities are taking out such injunctions at an increasing rate to distance themselves from damaging stories in the press. However, it is widely argued that this could be a worrying precedent for the right to free speech where defamation laws should protect the reputations of individuals in many cases.

You can be sued for libel following a defamatory allegation in a tweet (or retweet), just like in a newspaper. The law says that a libellous tweet would damage someone’s reputation ‘on the estimate of right thinking members of society’, whilst exposing them to ‘hatred, ridicule or contempt’.  Lord McAlpine, as discussed in the previous blog, was the first to engage tweets in a defamation case.  A good defence is one where the allegation is true, and can be proved so. Alternatively, if the tweet represents an honestly held opinion based on established facts (construed as a  ‘fair comment), a large damages bill would likely be avoided. The recently Defamation Act 2013 also puts the onus on the litigant to prove that the allegation caused no less than ‘substantial harm’ to their reputation. When put through Parliament, the Bill aimed to ensure that a fair balance is struck between the right to freedom of expression and protection of reputation.

In regards to the law surrounding contempt of court (which we have briefly touched upon), the Law Commission has recommended that a new criminal offence needs to be created in order to deter jurors from prejudicing a case. Why? Because a trial worth millions of pounds can fall flat due to a Juror’s conduct on the Internet. The case of Joanne Fraill, jailed for eight months, was significant in that she was the first to be found guilty for contempt over social media. She contacted the defendant in drugs trial on Facebook and thus her behaviour, in the words of the High Court Judge, ‘constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial’. A juror, of course, is only supposed to base a decision on what they encounter in the Court.

So there you go. Safe tweeting until next week’s blog, ‘How Trolling can amount to Harassment’.