You are what you tweet

Thursday 8 September 2011

Social Media is revolutionising the legal landscape. Here we look at various recent cases which show the impact Facebook, Twitter and the like are having on the English legal system.

Over recent years social media has exploded on to the scene and is a common feature of everyday life for many people. No one could have predicted that such methods of communication would capture the imagination of such a large percentage of the population. Equally, the effect on the legal world has been surprising. With many firms posting daily tweets and using Facebook to serve Court proceedings on otherwise untraceable Defendants, it seems that social media is a widespread phenomenon.

The Supreme Court has already allowed the use of live text based communications where the Judge considers that this will not interfere with the administration of justice. A consultation is currently underway with a view to rolling this out to all Courts in England and Wales. Whilst this may be welcomed as providing a transparent legal system, there are concerns that people in the public gallery may hear information kept from the jury which creates a clear danger of trials being seriously prejudiced.

Increasingly we are seeing the use of Twitter to breach the terms of Super Injunctions, most notably in relation to the footballer Ryan Giggs. Although it may seem easy to side-step such an Injunction, prosecutions for Contempt of Court may well follow and it has not gone unnoticed that social media is making something of a “mockery” of our privacy laws (so says Culture Secretary, Jeremy Hunt) with newspapers unable to print details widely available on the Internet.

Whilst revealing the exploits of footballers and other celebrities may seem harmless enough, untold damage could be caused in other legal cases by, for example, revealing the identity of victims in rape cases or other information that could lead to trials being abandoned. There is also the risk of child witnesses being indentified and publication of details of people in the witness protection programme. The potential effect on criminal cases could prove to be very serious indeed.

There is also the possibility that comments posted on social media forums may lead to cases involving defamation, malicious falsehood, breach of confidence or misuse of confidential information.

The recent case of the so called “Facebook Juror” Joanne Fraill highlighted the dangers posed by social media to the justice system. As a juror on a high profile drugs conspiracy trial, Ms Fraill contacted one of the acquitted Defendants through Facebook and the pair exchanged various messages, which ultimately led to the collapse of the multi-million pound drug trial. The Defendant was found guilty of Contempt of Court charges and was sentenced to a two month custodial term suspended for two years. The juror was imprisoned immediately for a period of eight months.

In a separate case, an individual was jailed for nine months after making a false claim following a car accident. It was discovered that despite having claimed a six figure sum for injuries which he said had left him unable to drive and wheelchair dependent, Graham Loveday had driven to Italy on a caravanning holiday. The fraud was discovered after photographs of the holiday were posted on Facebook, leading to a prosecution for Contempt of Court.

A French student due to stand trial in September had a charge of the manslaughter of his girlfriend increased to a charge of pre-meditated murder when Police discovered that prior to the attack he had changed the relationship status on his Facebook page to “widower”.

The Sun and The Daily Mirror newspapers have recently been fined £18,000 and £50,000 respectively for Contempt of Court following the adverse articles published about Christopher Jefferies, who was arrested but later released for the murder of Joanna Yeates. The Court took the view that the newspapers should be fined for the potential prejudice they could have caused had Mr Jefferies stood trial and the vilification of an innocent person.

The new Education Bill, if enacted, would make it a criminal offence to identify a teacher accused of criminal misconduct against a pupil until such time as the teacher was charged or disciplined.  A breach of this proposed law could mean that a single tweet revealing the identity of a teacher in this situation could lead to a fine of £5,000.

We have also seen the first instance of a tweeter being ordered to pay damages for a libel published on Twitter. Colin Elsbury, a former town mayor, was ordered to pay compensation and costs after claiming a political rival had been removed by Police from a polling station. It turned out to be a case of mistaken identity. Despite having tried to correct the tweet, the Court found that the damage had been done and made an overall award of £53,000.

More recently, we have seen widespread riots throughout major cities of the UK in which social media has played a pivotal role.  Facebook, Twitter and BlackBerry Messenger were instrumental in the organisation of the riots and looting which took place, with two Facebook users being imprisoned for four years for inciting disorder.

Use of social media is traceable to an individual and anonymous tweeters could easily find themselves being identified and facing legal action. Twitter is designed to be user friendly and posts can be made within seconds. Given the ease of publishing what could prove to be sensitive or legally actionable information, thought must be given to the content of all tweets. What may seem like an innocent 140 character comment posted by a member of the public may end up with them in Court or even prison. If you require assistance with any issue arising out of use of social media, our specialist Commercial Dispute Resolution team can help.