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

Nigel Evans, contempt and clues about alleged victims

WAS Nigel Evans flirting with contempt of court by so publicly protesting his innocence on TV at the weekend?

That was the question I was asked after he had appeared before cameras to deny the allegations of rape; talk of his shock that they had been made and thank his constituents and friends for their support.

We have seen this sort of statement often recently, especially by those caught up in Operation Yewtree and other inquiries stemming from the Jimmy Savile scandal (although it must be pointed out Evans’s case is in no way linked to those wider inquiries.) Celebrity emerges from home after being released on bail to make a statement to camera insisting they are not guilty, that they will be proved so in due course and to thank their family, friends and fans for their support

Could such a statement be a problem legally? Well there is no doubt that contempt of court is a risk now. Evan has been arrested, so proceedings are active for the purposes of the contempt of court act. That means that nothing should be published or broadcast now which could cause substantial risk of serious prejudice to any future proceedings.

Will claiming you are not guilty create such a risk? If it is simply an insistence you are not guilty, then no. Thanks expressed for support are also fine. Remember any jury will be told on the first day of trial that the defendant is presumed innocent.

I do think that Stuart Hall’s recent statement, which went beyond proclaiming his own innocence to ask why those making the allegations had not reported them before, skirted the edges of contempt. And I think Mr Evans was unwise to talk about detail of one of his accusers and his recent contact with him.

I don’t believe it cleared what is quite a high bar for a contempt prosecution, even with the current Attorney General Dominic Grieve’s seeming enthusiasm for prosecution.

However, I do think what he said could be an identifying detail about one of the complainants. They get anonymity for life once they make an allegation of rape and that forbids publication of any detail that would identify them as the victim of a sexual offence.

So if anyone, not necessarily everyone, can work out who the victim is from a detail you have published or broadcast, then you are guilty of an offence, and a sexual offence at that. The detail does not have to be obvious things like the complainant’s name or address, just some fact that enables someone, perhaps someone who knows them, to put two and two together and identify them as the victim.

Victims’ anonymity lasts a lifetime and can only be lifted with their consent, that of a judge, or if they are subsequently charged with an offence in relation to the complaint such as perjury or perverting the course of justice. Any decision to prosecute is made by the Crown Prosecution Service in this instance, not the Attorney General.

 It is likely we will see more statements like that of Mr Evans, but if such accused do no want to add to their list of legal woes, they need to take care what they say

Here come the (thought) police

A COUPLE of jurors have been in the news this week, one for speaking his mind in court, one for speaking his mind on Facebook.

One is now facing a contempt charge after he allegedly committed his thoughts on being chosen to try a man charged with sexual offences against a child to his Facebook page. He may be regretting being quite so frank in allegedly saying he “wanted to fuck up a paedophile.”

The other was a juror on a sexual offence trial in Tyneside, but his problem was not the nature of the offence, it was the origins of the offender – a Mackem (native of Sunderland) whose home team had just given the Geordie juror’s team, Newcastle United a 3-0 drubbing in the local derby. The juror was, he confessed, incapable of trying the man fairly and was discharged.

Cue outrage on Twitter at his confession, especially as the delay to the trial meant the victim had to go through evidence again.

Would we rather both had remained silent? Of course it would be preferable that all jurors arrived at trial capable of setting aside prejudice and trying the case solely on the evidence.

But if they are not capable of doing so, isn’t it better to know that?

The Toon fan made his feelings known in court, so avoided anything more than the disapproval of the court, and a vocal few on Twitter and elsewhere. The Facebooking juror is facing somewhat more serious consequences.

This raises a wider point about the way in which offensive behaviour on social media is being policed and reported by the media and it follows on from the post I wrote below, about Paris Brown.

At the moment publication on social media is being treated by the police, the Crown Prosecution Service and the courts as just that, a form of publication, which it undoubtedly is. I would argue that it is more than that, it is fundamentally different to that.

Publication has for centuries now, involved many tiers of eyes examining an article, book or broadcast before it reached the general public. The exception being, perhaps, live TV, but even there a time delay and a watchful eye meant the public were usually spared anything too offensive.

In my own experience, any piece of writing I perpetrated had to get past a newsdesk, sub editor, chief sub editor, night editor and stone sub before it reached the paper and I, like many reporters before me, am grateful for their eternal vigilance.

Now, however the means of publication, or in the case of the retweet, re-publication, has been out in the hands of everyone. Anyone can distribute their thoughts to the multitude, in subbed, as fresh as the moment they had them. Much of it is wonderful, some of it mundane and plenty of it actionable in law.

And the instantaneous nature of social media publication, I would argue, differentiates it for any form of publishing we have seen before. If you watch a young person going at their iPhone, you realise just how slow your own thumbs are and how quickly they can commit their thoughts to the ether. And this is my fundamental point, this is less like publication and more like thought. Many users of social media, especially Twitter, are simply thinking out loud, very loud.

Of course, one might argue, it is their own fault, they know the power of the retweet, they ought know their digital thoughts become permanent and searchable for all to discover. But the vilification of the likes of Paris Brown and the juror who didn’t like paedos simply tells people to keep their thoughts to themselves. It does not address the fact that they have those thoughts in the first place.

This is what social media is showing us, that there is an ugly side to people’s nature and before they would only express it to family, close friends and those who shared their views, now they are committing it to the Internet.

And is this what we want? I think yes, I would rather know what a juror thought about me, so he could be discharged, than him keep it a secret and find me guilty.

When Orwell wrote 1984 he envisaged cameras in every home spying on our every action. This is so much more than that, we don’t need the cameras, we have Twitter, Facebook, Blogs and more where people voluntarily sign up not only to record their actions but also their very thoughts.

The thought police are here, but they weren’t sent in by Big Brother, they are us.

Why judges need no further powers

PROPOSALS to give judges far-reaching powers over the media to prevent prejudice to trials are wrong and here are three quick reasons why.

The idea is included in the Law Commission’s consultation on contempt of court and means that judges could order the temporary removal of material from online archives before and during a trial if it might prejudice the case.

I will be submitting a detailed response to the commission’s consultation, but I wanted to set out a brief argument against that specific idea, in the hope it would prompt others in the media to realise the huge burden it will potentially place and on them and prompt them to respond to the consultation as well.

1. If you give judges this sort of power, they will exercise it too widely and too often

Often for the best of reasons, judges make orders which are simply beyond their powers in law. They may do so to preserve a fair trial, or to protect a vulnerable victim or witness, but they overstep what the law says they are allowed to do.

There are countless examples of the misapplication of orders under Section 4 and Section 11 of the Contempt of Court Act 1981 and Section 39 of the Children and Young Persons Act 1933.

At the Law Commission symposium held recently to discuss their proposals. One judge attending, unwittingly perhaps, gave a perfect example of this.

He had, he told the audience, been the judge in the trial of two police officers over the Hillsborough disaster. During that trial he had made an order banning publication of any photograph of the memorial to the 96 who died at Hillsborough. He explained that feelings were inflamed at at the time and they needed no further inflammation by publication of such an emotive picture.

There were various nods of approval from the audience when he said this.

The question is, under what power in law did he make such an order? Section 4 of the Contempt of Court Act 1981 allows for an order postponing the reporting of an element of a trial, or the entire trial, to prevent prejudice to proceedings. However, it only gives judges the power to postpone reporting of their proceedings, it cannot apply to events outside the court. The Hillsborough Memorial was not part of those proceedings, so ought not to have been subject of any order.

2. The practicalities of removal of material will impose a huge burden on publishers and ultimately render such orders ineffective.

The idea of these orders is that where someone has been the subject of previous proceedings or trials, widely reported, that an order can be made so that those reports are temporarily hidden from public view, so that a juror on their trial will not find them.

They will not work, and here’s why.

The idea is based on the premise that prejudicial material will be easy to find, identify and disable. Things are never that simple, even with the formidable technology at the disposal of publishers.

Let’s take the example of Gary Striker, Premiership footballer, leading goal scorer and well-publicised bad-boy.

Let us say, for simplicity’s sake, that stories about Striker fall into six categories:
1 Sport stories including match reports which feature him
2 Sport stories which feature Striker’s often very serious foul-play
3 News stories featuring Striker’s public appearances that contain innocuous material
4 News stories that detail Striker’s appearances in court on a variety of charges
5 Sport stories that mention his convictions in passing
6 Stories from all of the above, which include readers comments that mention his previous convictions

Let’s say Striker is up on a very serious charge, heading for Crown Court trial and the judge decides to make an order for removal of prejudicial material.

I don’t think any automated programme exists that would differentiate the above categories.

The only way you will be able to sort out the prejudicial from the innocuous is to have people read them, and in the case of someone as famous as Striker, that will mean sifting a vast amount of information. Who will that burden fall upon?

Will the defence, or judge, in seeking, or making an order, be required to specify which stories they want removed?

Or, as I suspect, will the power be to make a general order for removal of prejudicial material, leaving publishers to sift out the benign from the risky.

In a case like that of Striker, that will be almost impossible to achieve in a timely manner.

I do hope that publishers, of both new media and traditional newspaper websites, will respond to the Law Commission proposals and urge a rethink on this issue.

If they don’t, then pity the poor minions who have to weed out every prejudicial mention of Gary Striker.

Contempt of court and how to avoid it

I have spent 12 years training journalists and others in media law and I, like many, thought contempt of court was a bit of a  paper tiger.

We had had very few actions for contempt brought by the Attorney General over the years and those that had been were so blindingly blatant that anyone with a rudimentary knowledge of the law could have avoided them – the Leeds footballers, Bowyer and Woodgate contempt by the Sunday Mirror, for example.

But recently we have had a series of contempt actions, with more pending.

The Sun and Daily Mirror were prosecuted over reporting of the arrest of Chris Jefferies, landlord of Joanna Yeates – an innocent man ‘monstered’ by the tabloids.

The Daily Mail and The Sun were prosecuted for contempt for publishing a photograph online of a man holding a gun during his trial.

The Attorney General is due to decide whether to bring an action against a journalist who allegedly tweeted details of pornography found on Vincent Tabak’s computer which was ruled inadmissible as evidence at his trial for the murder of Joanna Yeates.

The Mail and the Mirror face a contempt action over reports of a trial of Levi Bellfield, killer of Milly Dowler

Now The Spectator awaits a decision from the AG after columnist Rod Liddle weighed in with commentary on the Stephen Lawrence murder trial which the jury were directed not to read.

I have written many, many times about the AG Dominic Grieve’s attitude to contempt and the fact that he has warned he will take action where there has been prejudicial reporting.

So, for those of you out there wondering what contempt is and how you might steer a path through it, here is a quick guide.

1. What is contempt?

The law that protects the judicial process. It covers many things from obedience to orders of the court to behaviour in the courtroom itself. But if you are in media then you worry about contempt by publication – ie putting something out there which might derail the judicial process.

2. When do I worry about contempt?

When proceeding are active. The old common law of contempt used a wooly phrase – proceedings ‘pending or imminent’ which was whatever a judge took it to mean – a week, a month, a year. The Contempt of Court Act 1981 swept this aside and created the concept of ‘active’ proceedings. Proceedings are active when someone has been arrested; a warrant has been issued; they have been orally charged or an information has been laid. If none of these things has happened then contempt evaporates as a problem – publish whatever you like.

3. OK, proceedings ARE active, what should I avoid

Publishing something which creates a substantial risk of serious prejudice or serious impediment to those proceedings.

4. What does that mean?

Well, that’s a little subjective, but case law has shown the following to be a problem:

*Photos or descriptions where identity is at issue – ie the defendant claims it was not him who committed the crime and the prosecution has eyewitnesses whose testimony has to be tested by way of an ID parade. They must rely on their memory of the offence, not a photo helpfully published by the media. This action cause the record fine for contempt (so far) £80,000 for the Sun and £20,000 for Kelvin MacKenzie as editor.

*Assumptions of guilt – in crime reports, police have arrested A man, not THE man.

*Previous convictions – not normally allowed in as evidence, so don’t go informing the jury of them.

*Blackening a defendant’s character – if the prosecution do it in front of the jury, that’s fine. Just don’t do it yourself as they await trial.

5. Does this mean a media blackout about a crime if proceedings are active?

No. The CCA 1981 was drafted in response to the Sunday Times coverage of the Thalidomide scandal, which had been found in contempt under the old common law. The ST took an appeal all the way to the European Court of Human Rights, which ruled that the common law contempt, as applied, was in breach of the ST’s right to freedom of speech. So the CCA 1981 includes a Section 5 defence of ‘discussion of public affairs’. So, for example, a euthanasia trial does not shut down all mention or discussion in the media of the issues of euthanasia. But such discussion should avoid direct commentary on the trial.

6. What other defences do I have?

Section 3 defence – you didn’t know and had no reason to suspect there were active proceedings. But you have to show you checked. So if you’re reporting a crime and the police fail to inform you, when asked, that someone has been arrested, then you have a defence.

Section 4 (1) defence – you can’t be in contempt of court if you are reporting court. As long as the judge has not exercised powers under Section 4 (2) ordering you to postpone reporting of some aspect of the trial.

That’s about all there is to it. I realise that when the Pack are covering a story it is sometimes hard to resist carrying the same stories as others and to outdo your rivals at any cost. However, I cannot emphasise enough the folly of doing so. Dominic Grieve takes this very seriously and he has shown he is prepared to act.

If you need further assistance in any of this, you can find my contact details on the contact page of this site.