Tweeting your way into prison

I ARRIVED home one Friday evening to a flurry of messages from sports reporters who follow me on Twitter.

“You have got to get on Twitter and see what Joey Barton is up to,” they said.

I logged on to find that Barton had decided to give the world the benefit of his thoughts on the viability of John Terry’s not guilty plea to a charge of racially abusing Anton Ferdinand – a charge for which he had yet to stand trial.

Barton was typically forthright and one memorable tweet described Terry’s plea as an insult to any juror’s intelligence.

Was Barton, I was being asked somewhat hopefully it has to be said, up to his neck in contempt and would his next fixture be in court facing the Attorney General?

Fortunately for football, and Twitter’s, favourite bad boy @Joey7Barton was in the clear because Terry’s case was to be tried by magistrates, who are beyond the influence of the media, and certainly incapable of being swayed by the tweets of a footballer. Indeed, Terry was eventually found not guilty.

But as was clear from his tweet mentioning jurors, Barton didn’t know this, and nor did the many people who assumed he was about to be prosecuted for contempt.

This was a sign of things to come. Following press inquiries, the Attorney General’s office announced the following Monday that Barton would not be facing any action. But since he was appointed the AG, Dominic Grieve QC, has made it clear he takes contempt very seriously and has warned that he would prosecute bloggers and tweeters as well as traditional media if they overstepped the mark.

So it came to pass last month that two men were given nine-month suspended prison sentences after they admitted contempt by publishing on Twitter and Facebook photographs purporting to show the killers of James Bulger, Robert Thompson and Jon Venables as adults. Both are subject to a court order banning publication of any details about their new identities, location or photographs of them.

The case is the latest in a long line of incidents where ordinary members of the public have taken to social media and found themselves charged with a crime; facing substantial damages in a civil action or else doing untold damage to their own reputation through an errant post.

We are all publishers now, but mainstream publishers know the law, and even they get into trouble reasonably often. Setting up a Twitter or Facebook account is the work of moments and if memory serves does not entail a run-down of the legal pitfalls that await the unwary.

Perhaps it should, because the past year has seen a catalogue of cases illustrating the variety of ways in which individuals can break the law online.

For example, some supporters of Ched Evans, a Sheffield United and Wales footballer, took to Twitter when he was convicted of rape, naming the victim. Ten of them were tracked down by North Wales Police. They now have a criminal record for an offence under the Sexual Offences Amendment Act 1992.

Even the judicial process itself can be derailed by the injudicious use of Twitter or Facebook. One juror had to be discharged after she confessed to her Facebook friends that she was having difficulty deciding the case she was trying so asked them to help. Another was sentenced to eight months in prison after she Facebook friended a defendant she had just acquitted and gave her a running commentary on the two co-defendants that were still being tried.

Police forces are finding their time increasingly being used to investigate messages on social media.

The man who sent obnoxious tweets to diver Tom Daley after he ‘only’ managed an Olympic bronze found himself the victim of Tweetmob after the diver RTd him and then got a knock on the door from the police who issued a warning for harassment.

The Director of Public Prosecutions, Keir Starmer, recently issued interim guidance on when it would be suitable to prosecute such messages. However, even with that guidance in place, as more and more people sign up for such media, the caseload for police and the court can only increase.

And that is just the criminal side of the issue. The capacity for user to publish libels and breach others’ privacy on social media is huge.

A retweet takes just two button pushes, and as we saw from the Lord McAlpine libel case, several hundred people found that all too easy to do. It seems the retweeters are being let off with an apology, deletion of the tweet and a nominal donation to charity. Others who tweeted more are embroiled in actions launched by the peer.

There seems to be a perception among those who find themselves in difficulty that a post on social media is not like publication. Many will say things like it’s ‘just my opinion’ or that they were simply not aware that what they were doing was against the law.

But it is. Conversations confined to the saloon bar or the dinner party table are being committed to the internet where they are permanent and searchable.

And here lies the challenge for our lawmakers, and to an extent the publishing platforms that allow people to get into so much trouble.

It may be that well-publicised cases such as the purported Bulger killer pictures and the McAlpine libel may serve as a deterrent. If they do not have that effect then the DPP, CPS and the government perhaps need to examine the law to see whether they are content for ever-larger numbers of people to criminalise themselves in this way.

We cannot expect Twitter, Facebook, Blogger and others to police every item that is published by their users, nor would we want them to for well-founded reasons of freedom of speech. However, they could give better guidance to users when opening an account about the kinds of material that can get them into legal trouble.

If nothing is done, then the police, courts and, before long I predict, prisons are going to be busy.

If you are worried about your own, or your employees’ liability for what is published on social media, I run courses on how to make the most from these platforms, while avoiding potentially serious and costly legal problems. Contact me via the contacts page, above