Twitter and Facebook – Avoid Prosecution For What You Say

The impact of social media and the necessary legal curbs to prevent its abuse has been in the headlines throughout 2012. We have witnessed a number of prosecutions for comments made on both Twitter and Facebook and those who have fallen foul on the limitations of free speech, enshrined in Article 10 of the European Convention on Human Rights have received some harsh sentences. In the middle of the year, Matthew Wood who was 20 at the time received a 12 week prison sentence for posting offensive views comments on Facebook regarding missing 5 year old April Jones. He was prosecuted under s.127 Communications Act 2003. Azhar Ahmed received a community sentence for derogatory comments claiming that British soldiers can die and go to hell, after the deaths of service personnel.

A number of celebrities have also fallen foul and the Speaker’s wife Sally Bercow appears in a current stand off with Lord McAlpine for a posting she allegedly made on Twitter regarding the Jimmy Saville affair.

Last week, Keir Starmer QC, the Director of Public Prosecutions, published some interim guidelines to prosecutors, outlining the approach which should be taken when dealing with cases involving communications sent through social media channels. It is clear that the guidelines are an attempt to strike a balance between essential freedom of expression and the requirement to uphold the criminal law.

The guidelines seek to distinguish between credible threats of violence, targeted campaigns of harassment or those comments which breach court orders with communications sent by social media which are grossly offensive or derogatory. It seems that the first group of acts will be prosecuted robustly, but the second will need to cross a high threshold as intolerable or acceptable. There is a greater degree of discretion in assessing social media comment.

It does seem that the new guidelines take a common sense approach and will at least offer a framework for both the Police and prosecutors to provide consistency.  There is no doubt that victims of targeted social media harassment can suffer long lasting damage but the fact that a comment is merely offensive, will not be sufficient to cross the high threshold. The article needs to be more than offensive, shocking or disturbing and not just satirical, iconoclastic or rude. Even the expression of unpopular or unfashionable opinions about serious and trivial matters even if distasteful is not sufficient.

Despite a raft of legislation including the Malicious Communications Act and the Communications Act 2003 it is clear that a balance has to be struck with free speech principles and no prosecution should be commenced, unless it is both necessary and proportionate.

There are now numerous examples of blogs being prosecuted. Stephen Andreassen admitted a charge of harassment through social media blogs and was given a lifetime restraining order preventing him mentioning the name of a former partner online. He subsequently breached the order and was imprisoned after continuing to write blogs about her.

In December 2011, the Lord Chief Justice, Lord Judge,  issued guidance on the use of Twitter from Court. The limitations of sending live communications from the Courtroom is subject to the Contempt of Court Act 1981 and, whilst permitted, it is subject to the restriction that it in no way interferes with the administration of justice. The dangers of allowing instantaneous and contemporaneous reporting of proceedings was seen in recent criminal trial of Harry Redknapp the football manager. In that case an over-zealous reporter overstepped the mark as he identified a juror and reported on legal arguments outside the hearing of the Attorney General was asked to consider contempt proceedings against the journalist, but none were subsequently brought.

The dangers of Twitter can also be seen in what became known as the Twitter Joke Trial in which Paul Chambers facing bad weather couldn’t fly from Robin Hood airport. He subsequently tweeted "Crap! Robin Hood airport is closed. You've got a week and a bit to get your s*** together otherwise I'm blowing the airport sky high!!". The message, which he claimed was intended to be humorous led to him being charged and convicted under s.127(1)(a) Communications Act 2003, for the improper use of a public electronic communications network.

He was ultimately successful in an appeal to the High Court and the conviction was overturned and the judgment of Chambers v DPP : [2012] EWHC 2157 was clear that tweets can include a joke "bad ones as well as good ones".

There is no doubt that Twitter is a valuable way of gaining insight into people's ‘off the cuff remarks and it provides a useful window on their motivations and the way they can act. Twitter now has 500 million active users and there are over 340 million tweets each day.

A recent US study has showed that over 80% of family lawyers are using Facebook and similar websites to gather evidence. Facebook is a good source of evidence, and whilst people continue to openly discuss their private lives on the platform, its usefulness in Court proceedings is on the increase.

Facebook mutterings can also be used as evidence in many other areas of law. The case of Graham Loveday is another useful example. Mr Loveday claimed to be disabled, yet a number of photos on his Facebook page severely undermined his claim. He had argued he was wheelchair bound and had a phobia about travel. His Italian holiday photos resulted in a 9 month contempt of court prison sentence for false information and verifying statements of truth.

The information and resource available on social platforms is not only restricted to the legal world, but may also be entering the financial arena. London mortgage brokers Capital Fortune admit to regularly checking out potential client’s profiles online and Business Manager Rob Killeen states that “the information provided is invaluable. It can give an indication of social habits, drink and drug profiles, family identity and community, educational background even work and leisure pursuits. We have no doubt internally, that mortgage lenders are quickly cottoning on to this detailed resource as they seek to mitigate risk and make appropriate lending decisions”

The rise of social media has moved past the limited preserve of teenagers and students, sharing pictures and chatting about their latest exploits. Twitter and Facebook appear to have now spread to every demographic. This medium is both effective and cheap. There is now doubt that when consumers want to take out a mortgage or other loan substantial loan they want a company they fell they can trust. People want to be connected with a range of organisations which play an important part in their life and there is growing evidence that they seek out institutions which are transparent, knowledgeable and genuine.

Social media posts allow mortgage brokers and mortgage lenders to educate and develop strong personal relationships with customers. Both the platforms of Twitter and Facebook allow for updates on products, customer service alerts, and available mortgage rates allowing marketing campaigns to be implemented with ease, measurable and instantly visible.

Social media communications provide a cost effective avenue, putting both a face and a voice to the Company, be that law or finance. There are a range of pitfalls inherent in the process and as UK Courts rightly tighten up on some of the more excessive abuses, so long as Twitter and Facebook are not used for personal vendettas or harassment campaigns, there should be little ability to overstep the legal threshold.