Mind what you tweet – You can be sued!

by Brian Wheeler

twitter marketing

The law concerning Twitter is clear – if you make a defamatory allegation about someone you can be sued for libel.

People who tweeted photos allegedly of child killer Jon Venables are being charged with contempt of court. It’s the latest in a long line of cases that suggest that ordinary social media users need to have a grasp of media law.

Journalists from traditional media are used to going on courses and reading works like McNae’s Essential Law for Journalists. Those regularly covering court may have another level of knowledge. But the final resort is always to the expert advice of a media lawyer.

Here are some of the categories of law on which social media users in England and Wales are coming unstuck.

Libel on Twitter

Case: Lord McAlpine falsely accused

Alleged offence: Libel

Outcome: Cases against most tweeters dropped but action still being taken against Sally Bercow, wife of Commons speaker John Bercow

In November, Conservative peer Lord McAlpine announced his intention to seek libel damages from Twitter users over incorrect and defamatory insinuations linking him to child sex abuse.

The Conservative peer had already received a substantial damages settlement from the BBC over a Newsnight report falsely suggesting he was a paedophile.

Newsnight did not name him in its report, but it prompted a guessing game on Twitter which resulted in the peer being falsely accused of sex offences.

The law concerning Twitter is clear – if you make a defamatory allegation about someone you can be sued for libel. It is the same as publishing a false and damaging report in a newspaper.

But until the McAlpine case, no one had seriously attempted to exercise that right in the UK.

Twitter users may have felt a “safety in numbers”, says technology law expert Luke Scanlon, of Pinsent Masons. They assumed they could say anything they liked about public figures because they could not sue everybody.

Lord McAlpine has dropped threatened legal action against Twitter users with fewer than 500 followers and instructed his lawyers to concentrate their efforts on seeking £50,000 in damages from Mrs Bercow, in what is expected to be the first High Court Twitter libel trial.

At the height of the Twitter frenzy, Mrs Bercow tweeted to her 56,000 followers: “Why is Lord McAlpine trending? *innocent face*”

The test: A tweet is potentially libellous in England and Wales if it damages someone’s reputation “in the estimation of right thinking members of society”. It can do this by exposing them to “hatred, ridicule or contempt”.

How it’s changing: Under the Defamation Bill, due to become law later this year, litigants in England and Wales will have to show that the words they are complaining about caused “substantial harm” rather than simply “harm” to their reputations.

Website operators may also be forced to remove potentially libellous comments by anonymous “trolls” or hand over their names and addresses to the authorities. Scotland is expected to adopt its own version of the changes.

Reporting sex offences

The case: Twitter users name the victim of rape by footballer Ched Evans

Offence: Contempt of court

Outcome: Seven men and two women fined by Welsh magistrates

Wales footballer Ched Evans was convicted of raping the 19-year-old woman in April 2012. The case generated more than 6,000 tweets, with some people deciding to name the victim, suggesting she was “crying rape” and “money-grabbing”.

All of those who pleaded guilty and were fined said that they did not realise they had broken the law by naming her.

The test: Media organisations are automatically banned from naming the victim of sexual assaults. The same rules apply to social media users.

How it’s changing: It’s not.

Breaking a court order

The case: Social media users circulate alleged pictures of child killer Jon Venables

Alleged offence: Contempt of court

Possible outcome: Fine or imprisonment

The attorney general is taking legal action against several people who published photographs said to show one of James Bulger’s killers. There is a ban on publishing anything revealing the identity of Jon Venables or Robert Thompson.

Images said to show one of them as they are now appeared online earlier in February, and have since been removed. Venables and Thompson were convicted of killing two-year-old James in Merseyside in 1993.

In extremely rare cases, often involving child killers, a judge will make an order banning their identification to protect them from vigilante attacks and allow them to start a new life under a new identity.

The test: The social media users facing prosecution are accused of breaking the terms of a court injunction banning the identification of Venables and Thompson. The terms of the order mean that if a picture claims to be of Venables or Thompson, even if it is not actually them, there will be a breach of the order.

How it’s changing: It isn’t

Other contempt of court

The case: Juror Joanne Fraill contacts defendant in trial by Facebook

Offence: Contempt of court

Outcome: Fraill is jailed for eight months

In June 2011, 40-year-old Fraill became the first juror to be jailed for contempt over social media after she caused the collapse of a multi-million pound drugs trial after exchanging messages with a defendant.

Sentencing Fraill, the judge at London’s High Court said in a written ruling: “Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.”

The test: The main aim of contempt rules is to ensure fair trials by limiting juries’ exposure to information that might be prejudicial. Jurors are meant to make up their minds on the evidence presented to them in court, not what they have seen in the media.

How it’s changing: The Law Commission believes a new criminal offence will have to be created to prevent jurors looking up information about a case or chatting about it on social media. The government is due to legislate.

Tweeting a bomb threat

The case: Paul Chambers joked on Twitter that he would blow up Robin Hood Airport

Offence: Sending a “menacing electronic communication” under the 2003 Communications Act

Outcome: Found guilty in May 2010 but conviction quashed on appeal

Paul Chambers was living in Doncaster, South Yorkshire, when he joked on Twitter that he would blow up nearby Robin Hood Airport when it closed after heavy snow – potentially disrupting his travel plans.

He tweeted: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!”

His conviction was eventually quashed by the High Court, amid a high profile campaign to defend free speech on Twitter.

The test: It can come down to the judgement of police and prosecutors. Aggravating factors, such as racism and prejudice against religion, disability and sexual orientation will lead to increased sentences.

How it’s changing: The Chambers case appears to have been a turning point. Prosecutors have been urged to consider whether a threat to damage property or harm someone carries real menace before pushing ahead with a case.

“As a general rule, threats which are not credible should not be prosecuted, unless they form part of a campaign of harassment specifically targeting an individual within the meaning of the Protection from Harassment Act 1997,” say the new CPS guidelines.

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