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Social Media & Contempt of Court

About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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Earlier this week I published a post on the recently introduced defamation reforms, which have been greatly influenced by advancements in technology; namely the accessibility of direct publishing platforms to the masses. Services such as Twitter and Facebook allow anyone to publish to the world at the click of a button, without moderation. However, many are not aware of the potential implications their tweets or status updates may have.

Whilst defamation law is now less claimant-friendly and persons may be able to better defend themselves from defamation claims regarding their online comments, they can still be found in contempt of court for commenting on court proceedings.

Censorship of comment on court cases is no new thing. The Contempt of Court Act 1981 has for over thirty years restricted comment that could be seen as prejudicial to a court case, or those involved. The Attorney General has long provided media outlets with advice on what they can and cannot do, and it has now been decided that guidance should also be given to the public given the accessibility of mass publication mediums.

This is something that must be taken seriously. Back in April 2012 when footballer Chad Evans was in court following allegations of rape (and was later found guilty), the identity of his victim was published by many on Twitter, which is prohibited by Section 1 of the Sexual Offences (Amendment) Act 1992. Nine tweeters were faced with criminal charges, and ultimately had to pay fines of £624 each. For Holly Price, one of those found guilty, it cost her a lot more than £624, she was suspended from her job. Peaches Geldof may be faced with similar charges following a tweet identifying the mothers of Ian Watkins’ (Lostprophets lead singer) victims.

So what are the limits? The Attorney General is yet to publish any extensive guidance on where the limits lie; only basic information is currently published on the Attorney General Office’s website. Hopefully detailed guidance is to come, both on gov.uk and on the Attorney General’s Twitter feed, @AGO_UK. The Attorney General has however suggested that the ‘simplest rule’ is to not comment on live trials online at all. Social media users should also bear in mind that any victim of a sexual offence is automatically granted anonymity for life by Sexual Offences (Amendment) Act 1992. It would appear that even a retweet would be treated as a publication by yourself, much to the dismay of several of those charged for identifying Evans’ victim.

Without this guidance, the layman is unlikely to know where they stand, and comment where there should be no comment will continue online. Furthermore, the CPS has been highly selective over who is prosecuted. The nine found guilty of identifying Evans’ victim were among 6,000 others. When so few prosecutions are made, will anyone really be deterred from commenting where they should not be?

Clear guidance must be published, and further prosecutions made in order to combat the problem. I suspect co-operation will also be needed from social networks to educate their users of the pitfalls of publication, and in my eyes, it is their duty to.

Does this hamper freedom of speech? Yes, it does. However, it can be justified, especially where the identification of sexual assault victims is at stake. The stigma attached to such assaults is widely cited as one of the main reasons victims do not come forward, or are unwilling to prosecute. Their identities must be protected at all costs to provide victims with confidence to come forward.

General comment on live court cases can be just as damaging to a prosecution.

Take this scenario – two eager law students exit the court after an exciting day watching a hearing – they instantly turn their phones on and post some controversial opinions about the outcome of the case before a judgement has been given. These students are widely followed bloggers and before long a Twitter debate is raging, and outlandish, speculative comments are being made about the credibility of witnesses, or the defendant’s previous misdemeanours, whether criminal or otherwise.

Meanwhile, our jurors return home, and as the court directs, they do none of their own research on the case, but they do log on to Twitter, as it has become habitual. The above debate has got so heated, it is trending on Twitter and the juror cannot help but see some comments before closing the window (assuming this juror’s intrigue does not get the better of him). Thirty minutes later an email arrives in his inbox from Twitter “X, Y and 5 others have Tweets for you”. The same notification pops up on the Twitter app from his phone. Without meaning too, the juror may have been influenced by these tweets he did not seek to read.

A few comments alone could tip this juror’s opinion, despite the fact that tweets only consist of 140 characters, and are unlikely to have any hard evidence. Careless tweets may now have tipped the balance one way or the other, creating a potential miscarriage of justice. Is this really the environment a defendant should be tried, by the open jury of Twitter, who may well be relying on questionable evidence?

Social media has become an everyday feature of the majority of people’s lives. It is far more obtrusive and unavoidable than a newspaper or news website. What makes this troubling is that Tweeters do not have editors – they do not have someone peering over their shoulder questioning their accuracy or pointing out that you would be overstepping the mark by making a certain statement.

It is great that so many people have a platform from which to be heard, but this platform should not interfere with the course of justice. The CPS should take a more proactive role to prosecute those that overstep the mark, but before they do so, comprehensive guidance must be given to social media users. I look forward to the Attorney General doing so, and I hope social networks make a point of highlighting said guidance to their users.

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Tagged: Courts, Technology

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