Social media offers a previously unparalleled opportunity for engagement with brands, companies and users due to the instantaneous access to significant part of the global population. However, with such opportunity also comes a serious threat of abuse and ill-conceived comment. The courts have had to play a game ‘catch up’, often being required to use a range of ill-fitting legislative instruments in order to prevent such abuse. Due to the nature of the available regulation, the case-by-case approach has resulted in significant uncertainty over which standards and penalties will be applied. With the number of social media related cases likely to increase in the coming years, this article suggests that there is now a need for a consolidated legal framework, or at least significant guidance as to the application of the existing legislation, in order to bring clarity concerning where fundamental rights such as freedom of expression end and civil and criminal liability begin.
Regulation
Words can cause personal embarrassment and damage to character. For corporations, who are also increasingly finding themselves victims of defamatory speech, a false statement can mean loss of shareholder confidence, loss of competitive advantage, damage to goodwill and using resources that could be better employed elsewhere to implement damage limitation exercises. In response to these challenges, the courts have used an umbrella of legislation in order to achieve a just and fair result based on the facts of the case before them.
Communications Act 2003
Under s 127(1)(a), a person is guilty of an offence (punishable under s 127(3) by up to six months’ imprisonment or a fine, or both) if they send ‘a message or other matter that is grossly offensive or of an indecent, obscene or menacing character‘ by means of a public electronic communications network. (emphasis added)
This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins [2006] UKHL 40, Collins had made a number of racist phone calls to the offices of his local MP. In considering if an offence had been committed under s 127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents were liable to cause gross offence to those to whom it related. However, the Court stressed that individuals are entitled to express their views strongly and that the proper question for determining if s 127(1)(a) had been infringed was whether the language used went beyond what could be considered as tolerable in society.
While in the above circumstances the standard of what is reasonable may be considered obvious, in other cases there has been more room for doubt. For instance, John Kerlen was found guilty of sending tweets that the Court determined were both grossly offensive and menacing, for posting a picture of a Bexley councillor’s house and asking: ‘Which c**t lives in a house like this. Answers on a postcard to #bexleycouncil‘; and another saying ‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.‘ Mr Kerlen was sentenced to 80 hours of unpaid work over 12 months, incurred £620 in prosecution costs and made subject to a five-year restraining order. However, were these messages really menacing or grossly offensive and given the facts of the case would it have been more appropriate to bring a prosecution for incitement to cause criminal damage (if he was genuinely intending to encourage others to deface the councillor’s property) or for harassment?
In the ‘Twitter joke trial’ Paul Chambers was also prosecuted under the Act for sending the following tweet: ‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’ Mr Chambers subsequently appealed to the Crown Court against his conviction. The appeal was dismissed with the judge stating that the tweet was ‘menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.’ However, Robin Hood Airport had classified the threat as non-credible on the basis that ‘there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.’ Context clearly plays an important role, however there is no yardstick to determine what may be reasonable in a given circumstance or how the ill conceived message conveyed will be interpreted. This is an issue which did not escape the attention of the court. Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal.
On 27 July Chambers conviction was quashed. Lord Judge CJ stated, ‘the appeal against conviction will be allowed on the basis that this “tweet” did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further.’ Interestingly the Court took the view that English law (and prior to the 2003 Act) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. The Court also noted that the 2003 Act predated the advent of Twitter and that the statutory reference to ‘menacing’ was itself based on the wording of the previous Act of 1935. Lord Judge LCJ expressed the view that, ‘the 2003 Act did not create interference with the … essential freedoms of speech and expression.’ However, while a coup for freedom of expression, the route by which the Court reached its decision highlights the need for a comprehensive review of the methods by which the Courts seek to regulate commentary made via online channels.
Malicious Communications Act 1988
Under s 1(1) of the Malicious Communications Act 1988, it is an offence to send an electronic communication which conveys a message which is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person. A recent example of this arose after Sheffield United striker Ched Evans was convicted of the rape of a 19-year-old woman and individuals allegedly named the victim on a social media site, resulting in 13 prosecutions so far.
The above case clearly involved a very sensitive topic and the potential for distress and psychological damage to the victim was significant, as such the offensive element can be reasonably understood by the average person. However, with other subjects, what amounts to grossly offensive or distressing may not be so clear cut. What of comments regarding weight or appearance? Coleen Rooney, Katie Price, Stacey Solomon and Alexa Chung have all been the recipients of such negative comments on Twitter, but whether such comments in the future would lead to criminal charges is yet to be seen. It also raises this question: at what point will humour become prosecutable under the Act. Frankie Boyle, known for his dark comedy style, has recently taken to his Twitter page to write about Olympic swimmer Rebecca Adlington ‘I worry that Rebecca Adlington will have an unfair advantage in the swimming by possessing a dolphin’s face.’ Will comedians too potentially face criminal charges in the future?
Contempt of Court Act 1981
If someone posts information online that is banned from publication by the UK courts they may be found guilty of contempt and liable for an unlimited fine or a two-year prison sentence. The so-called ‘super injunction’ cases highlighted the shortcomings of the use of contempt as a viable policing instrument. On 8 May 2011 an account on Twitter posted alleged details of several of the injunctions that had been mentioned in the papers. Public interest was such that the record for visits to Twitter in the UK was exceeded, with one in every 200 visits being made that day to the poster’s web site. On the same date, Manchester United footballer player Ryan Giggs, who had obtained an anonymised injunction in the case of CTB v News Group Newspapers [2011] EWHC 1232 (QB), was named and shamed as the subject of an injunction and details of his affair with Imogen Thomas were posted on the micro site. Giggs requested that Twitter hand over details about account users who had revealed his identity in breach of the terms of the ‘super-injunction’. Hundreds of users simply responded by naming him again, causing the topic to go viral, demonstrating the laws inability to police such a vast reaching and instantaneous means of communication. No prosecutions were brought against the individuals involved and, even if attempts had been made, the logistical task of doing so would impose an almost impossible administrative burden on law enforcers.
Serious Crime Act 2007
The Serious Crime Act was used to effect during the riots in the UK in summer 2011. Under the Act, proceedings were brought against Jordan Blackshaw and Perry Sutcliffe-Keenan. Blackshaw had created a Facebook event entitled ‘Smash down in Northwich Town’ and Sutcliffe-Keenan had invited people to ‘riot’ in Warrington. Blackshaw’s page specified the disturbance to be ‘behind maccies’ – thought to be McDonald’s in Northwich town centre, Cheshire – from 1pm to 4pm on August 9′. Blackshaw then added under the first comment on the page: ‘We’ll need to get this kickin off all over.’ Sutcliffe-Keenan’s page invited people to take part in ‘Warrington Riots’ in Cheshire from 7pm and 10pm on August 10. There was also a photograph of civilians clashing with police officers.
The defendants were jailed for four years each under ss 44 (Intentionally encouraging or assisting an offence) Iand 46 (Encouraging or assisting offences believing one or more will be committed) of the Act. Martin McRobb of the CPS noted: ‘The posts caused significant panic and revulsion in local communities as rumours of anticipated violence spread’.
Crime and Disorder Act 1998
Liam Stacey, was sentenced to 56 days’ imprisonment for 26 racially offensive tweets (amounting to 2.2 days per tweet) in relation to Bolton Wanderers footballer Fabrice Muamba, for racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress under s 31(1)(c) of the Crime and Disorder Act 1998. This case serves to highlight the ad hoc nature of policing comments online, and the uncertainty as to the remedies that will be applied. For instance, why was Liam Stacy prosecuted under the Crime and Disorder Act rather than the Communications Act? In a case that was prosecuted under the Communications Act, Joshua Cryer, sent racially abusive messages on Twitter to the ex-footballer, Stan Collymore, and was sentenced to two years’ community service and ordered to pay £150 costs. The penalties under the two Acts differ considerably. A person guilty of an offence falling within s 31(1)(c) of the Crime and Disorder Act is be liable on summary conviction to a fine not exceeding level 4 on the standard scale, however, a person guilty of an offence under s 127(1) of the Communications Act is liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
Defamation Act 1996
Posting controversial messages online is not just a criminal issue, it can also attract civil liability, most notably under the Defamation Act 1996.
In Cairns v Modi [2012] EWHC 756 (QB), former New Zealand cricket captain Chris Cairns won a defamation claim against former Indian Premier League (IPL) chairman Lalit Modi for defamatory tweets in the first case of its kind in the UK. Mr Modi had tweeted that Mr Cairns had been removed from the IPL list of players eligible and available to play in the IPL ‘due to his past record of match fixing.’ The tweet was removed within 16 hours of being posted. However, the words were also repeated in a publication by Cricinfo UK, a cricket magazine. It was estimated that approximately 65 people saw the Tweet and around 1,000 people read the publication. Cairns sued Modi for defamation and Modi relied on the defence of justification; ie that his comments were true. Bean J rejected this argument stating that the Modi had ‘singularly failed to provide any reliable evidence to support such a claim‘. Bean J awarded Cairns damages of £90,000 (approximately £3,750 per word tweeted).
The other most common defence to a claim of defamation made in this context (ie a Twitter or social media comment that would otherwise be found to be defamatory) is the defence of ‘fair comment’. This applies when a comment (rather than a statement of fact) is published on a matter of public interest. The key here is that the statements must be comment (rather than, as in the Cairns case, a supposed statement of fact) and must be honestly held, as such it would not assist individuals posting malicious comment for personal gain or motive.
Conclusion
When it comes to regulation, law enforcement authorities have not found the lack of a codified ‘social media law’ to be a barrier. Instead they have applied a case-by-case approach, utilizing a range of legislative instruments to achieve prosecutions. However in today’s new, challenging digital environment, the existing body of legislative instruments does not provide for the degree of harmonisation required, nor the necessary efficiency to meet the demands which social media are placing on them. The Crown Prosecution Service has commented ‘cases are prosecuted under different laws. We review the evidence given to us and decide what is the most appropriate legislation to charge under.’ This has created shades of grey (albeit fewer than 50) as to what legal standards will apply under the re-adapted laws, which are often employed beyond the scope of their original purpose. Without a consolidated framework, it is difficult to determine where the line will be drawn in any given case between freedom of expression and the rights of others.
Laura Scaife is a trainee solicitor at Hill Dickinson. You can follow her on LinkedIn
