13th December 2013

Solicitor’s top legal advice and guidance for tweeting

Written by Andy Cash, Criminal Defence specialist and Director at the firm’s Derby office. 

If like me you have a Twitter account, the recent announcement by Dominic Grieve, the Attorney General, will be of real interest. The Government is issuing guidance to help people avoid breaking the law when tweeting.

Earlier in the year concerns were raised about cyber bullying and how on line threats could break the law. The online world or cyberspace is not the safe place many believe it to be. In the past we would discuss current events at work or socially in the pub or club and often heartfelt comments about difficult areas would be unlikely to leave the room. Social media changed all that forever. Everything added to Twitter, Facebook or any of the many networks is “published” and there are daily examples of how the smallest and apparently insignificant comments can “go viral”.

The effects of such comments can be far reaching and I suspect would come as a massive shock to the Tweeter. Criminal cases are tried by jurors, ordinary people selected at random, on the basis of the evidence put before them. What evidence they hear is closely controlled by the judge to ensure that the trial is fair, to both prosecution and defence. It is common for judges to restrict what a jury can be told to protect that fairness. In some cases the identity of victims is withheld from the court to ensure their safety. This will often be the case in rape and serious sexual abuse cases, but can easily apply in many other areas. If that information is released then the trial may have to be stopped and restarted; in some cases it may fail altogether. 

The law of Contempt has always applied to internet users, but enforcement of the rules is problematic for many reasons however the speed of take up and spread is one of the most worrying. In the past the media have been given warnings by the Attorney General of sensitive cases where there was a high risk that a criminal trial might be prejudiced by the publication of information. That process continues and more than 10 such notices have been issued this year alone. There has not been any similar guidance to the public, but now everyone is being reminded that, to comment about a criminal case or defendant in a way that might prejudice a trial, could amount to a contempt of court and result in imprisonment. 

The Attorney General, who is the country’s most senior legal advisor to the Crown and the Government does not tweet, but his office does. He intends to use the twitter sphere to issue help and guidance about areas where it would be unwise to comment.

The Attorney General has said he is not interested in those with a small group of followers who might comment as if to friends in the pub, but wants people to be aware that the danger is in the speed with which such tweets can be picked up and go viral.  The public use of social media is growing so quickly that it is felt necessary to try and educate people about the dangers of careless or emotional use of Twitter.

The plan is to extend education about the consequences of inappropriate use of social media. The careless disclosure of information has stopped trials and undoubtedly led to great distress to those involved as well as significant cost and inconvenience. A juror who tweeted during a trial was recently sent to prison for contempt and Police are investigating other cases including that of Peaches Geldof. Action has also been taken against people alleged to have disclosed information about the convicted murderers of toddler James Bulger. Other recent cases where the media have received notices include the phone hacking cases and several high profile murder trials.

The Attorney General has said:
“In days gone by it was only the mainstream media that had the opportunity to bring information relating to a court case to such a large group of people that it could put a court case at risk. That is no longer the case. This is not about telling people what they can or cannot talk about on social media; quite the opposite in fact, it’s designed to help facilitate commentary in a lawful way. We can help stop people from inadvertently breaking the law, and make sure that cases are tried on the evidence, not what people have found online.”

Modern social media enables comment to travel and be published widely in seconds and whilst it is clear that the Government is not seeking to target the isolated tweet to a small group, perhaps sent carelessly or emotionally, there is clearly a drive to educate users about the potential consequences.

As a defence lawyer I have sympathy for the desire to ensure a fair trial, but I also have concerns about the proposal to issue guidance. The social media world is vast and inevitably includes users who will act either without thought or even potentially maliciously in the belief that they are safe from prosecution. There must be a real risk that the simple act of posting guidance about a particular case or area has the opposite effect to that desired and increases comment on the net. Some commentators have pointed out that there are anonymous users of media sites and questioned how they might be controlled. This is clearly a real problem for the Government, however there is a clear desire to change attitudes and I have no doubt that, if a sufficiently serious case arose, they have the technology to track down and prosecute those who perhaps unwittingly commit contempt of court on line. If an example of that is needed we only have to look at the way that sex offenders are now tracked and trapped by their internet activity. Whether the Attorney General has the resources to pursue people who appear to be in contempt remains to be seen. 

The pace of change in media use can be frightening and the legal system often struggles to keep up. Whilst the new guidance is very helpful, my advice would always be to be cautious and not comment on line about any current case. As has been tweeted before, “think before you tweet”.

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