THE robustness of a legal system has often been tested by “new” offences being shoehorned into existing legislation.
While some legislative provisions have adapted well to a digital locus, for others it appears to involve more of an incongruous theoretical leap.
The advent of Facebook, for instance, would not have been in the foresight of the draftsmen of the Contempt of Court Act 1981. Yet in 2011 a juror was jailed under the 1981 Act for causing a trial to collapse after she searched for news of the case online and contacted a defendant over the social networking site.
Legislation creating a standalone offence is anticipated here. But this is one area where arguably the law can never catch up with social media: how can any law positively ensure that jurors do not commit contempt of court on their own computer in their own home?
Unlike face-to-face speech, online comments can of course be seen by anyone and are searchable, providing a digital footprint for prosecutors later to use as evidence. Even if a poster subsequently deletes a comment it might already have been reposted around the world.
While social media users might try to hide behind a “safety in numbers” anonymity cloak, it is clear from Lord McAlpine’s libel onslaught “against 10,000 people” that defamatory allegations made over social media will be treated the same as those made in print. For reasons of magnanimity or practicality, the number of followers someone had influenced McAlpine’s solicitors in deciding whether or not action will be taken.
Given that “publication” extends to re-tweets, the law here seems fit for purpose: unless a Twitter user knows the allegation to be true (a defence to defamation) then “tweet and be damned”.
The law regarding threatening social media posts does not need to “catch up”; it simply needs common sense application. The Communications Act 2003 is adequately placed to cover online posts which create genuine fear or apprehension in the minds of people who could reasonably be expected to see them. The danger lies in misinterpreting those social media posts that are not credible as threats.
The infamous Crown Court decision to convict Paul Chambers under the 2003 Act for a “menacing” message was overturned after a celebrity-backed outcry against restricting free speech.
Chambers’s tweet “… I’m blowing the airport sky high!!” in response to his travel plans being delayed was evidently tongue-in-cheek when taken in context. Clamping down on such online remarks without accounting for context is essentially outlawing a sense of humour.
What of offensive comments? Much has been made of the “Facebook trial” of Matthew Woods, who drunkenly posted an offensive joke which was originally seen by few people. Despite being similar to a joke tweeted by comedian Frankie Boyle to his one million followers, Woods was later reported and charged under the 2003 Act.
By contrast, there was no prosecution when Daniel Thomas posted a homophobic tweet about diver Tom Daley. The law here is, rightly, evolving to be as fully informed as possible. Factors such as the intended audience, swiftness of withdrawing the remark after posting and age of the poster are now routinely being taken into consideration in light of interim guidelines introduced in England.
The internet as a sprawling online “town square” brings with it all sorts of commentary by all sorts of people. Common sense application of the laws, incorporating the new guidelines, can punish those who use social media for genuine threats, harassment or to cause gross offence, while safeguarding someone who jokingly posts, “I could strangle my brother sometimes!” from facing charges of assault.
Equally, social media users need to be streetwise. Freedom of expression does not mean freedom from responsibility. The message is clear. Think before you post. Look before you Tweet. The toolkit of laws is there and fit for purpose. We just might not be selecting the right tools in the right circumstances, risking the use of #asledgehammertocrackanut.
• Adam McCabe is a trainee with Burness Paul & Williamsons.