The Attorney-General has launched an investigation after photographs purporting to show killer Jon Venables were allegedly posted on the Internet. Venables and Thompson became notorious in 1993, when they abducted James Bulger and tortured him before leaving him for dead. Venables and Thompson were released on parole in 2001, when they were both 18, and were granted almost unprecedented injunctions preventing the publication of their new identities (see Venables v News Group Newspapers Ltd [2001] EWHC 32 (QB)). The image, uploaded to Twitter on the 20th anniversary of the murder, allegedly shows Jon Venables at a birthday party. The picture was republished by more than 100 Twitter users and could have been viewed by thousands. It was originally uploaded by a user who wrote: ‘Obviously no one can officially confirm it, [but] the pics are clearly him and while drunk he himself told people his real identity.’
On 25 February the Attorney-General’s office stated that action will be taken in relation to the Tweet because “the terms of the order mean that if a picture claims to be of Venables or Thompson, even if it is not actually them, there will be a breach of the order. There are many different images circulating online claiming to be of Venables or Thompson; potentially innocent individuals may be wrongly identified as being one of the two men and placed in danger. The order, and its enforcement, is therefore intended to protect not only Venables and Thompson but also those members of the public who have been incorrectly identified as being one of the two men.” If found guilty of contempt, the individuals responsible could be liable for an unlimited fine or a two-year prison sentence under the Contempt of Court Act 1981.
In Venables v News Group Newspapers Ltd [2001] EWHC 32 (QB) the issue of publication of the pair’s identity via online channels was considered but not in any great depth and focused instead on the possibility of the press publishing information originating online and to curb its further publication in traditional media outlets. In the 2010 case of Jon Venables & Anor v News Group Newspapers Ltd and others [2010] EWHC B18 (QB), the issue of the injunction was revisited after a challenge by News Group Newspapers so as to prohibit permanently the publication of information which would lead to the identification of Venables or Thompson despite it arising from proceedings in open court following Venables conviction for child pornography charges. Bean J said that it was the fundamental duty of the state to ensure that suspects, defendants and prisoners were protected from violence and not subjected to retribution or punishment except in accordance with the sentence of a court, and this applied just as much to unpopular defendants as to anyone else. Perhaps an interesting aspect to note in the case (at [38]) is that Venables’ legal representative had submitted that a permanent injunction was necessary because of the continuing public animosity towards him and the risks he faced, and presented evidence of a large number of social networking sites in which contributors actively canvassed vigilante action to bring about his death. The issue arising out of private individuals and social media postings was rather disappointingly not analysed, with the firm focus once again being on the role of the press.
Although the law and social media was not analysed in the Venables cases, the so-called ‘super injunction’ cases did highlight the shortcomings of the use of contempt as a viable policing instrument. For example, 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. On the same date, Ryan Giggs, who had obtained an anonymised injunction in the case of CTB v News Group Newspapers [2011] EWHC 1232 (QB), was named as the subject of the injunction and details of an affair 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 ineility 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 have presented an almost impossible administrative burden on law enforcers. However the Attorney-General’s office in its statement of 25 February 2013 have indicated in relation to the Venables tweets that action is to be taken against several individuals and not just the person who originally published the content.
As noted above, one of the main things coming from the Venables case law is the publication by the press of the identity of the child killers. However what is not clear is how the Attorney-General has chosen to rationalise the application of the injunction to the public at large and it was not considered in the case history. Perhaps one of the unique issues presented by social media is that, when a comment is made online, unlike speech (which is transitional), it is recorded in a way that makes it easily searchable long after the comment was made, floating in contextless digital space and without referenc,e to the mindset of the individual when they sent it. What is more, the size of the audience means that postings can reach many more people than the author may have intended. Perhaps these issues will need to be considered in relation to the likely sentences to be imposed on the individual(s) concerned. It is also questionable if lay people would be aware of the strict liability rule contained in s 1 of the Contempt of Court Act. It is suggested that, while such postings on social media sites are caught within the ambit of contempt under s 2(1) of the Act more needs to be done to raise public consciousness that social media postings can attract criminal liability despite the informality of the medium.
Another issue which continues to rear its head is that of the role of platform providers. Intermediaries already have an incentive to remove illegal content in some cases under the notice and takedown framework of the E-Commerce Regulations 2002. However, Twitter for example already has a policy in relation to illegal content. Under point 8 of its terms (which can be found at http://twitter.com/tos) “Restrictions on Content and Use of the Services“, Twitter operates its site in a way that satisfies applicable laws and regulations. While the immediate danger may appear that the regulators will not do enough to police their sites, there is a converse risk that, if the platform providers or search engines are too quick to respond to complaints, this may create a feeling amongst users that too little weight is being afforded to the protection of an individual’s expression and that platform providers are simply moderating site content because there has been an open objection to it.
This risk could be avoided by a requirement that a court order be obtained to establish some element of illegality or evidence of harm. Given that (in part) the “Venables Tweets” are being pursued to protect those who are wrongly identified as the child killer, this will be a very important consideration in that case. However, the benchmark of demonstrating harm could be set too high for most complainants to find a use for it, given factors such as the resources required to fund the acquisition of such an order. It may be that the only course of action for most people would be to draw the matter to the attention of the Attorney-General’s Office and seek its assistance. As seen in the ‘super injunction’ cases, it may be a matter of shutting the stable door once the horse has bolted. Indeed, for individuals wrongly identified as Venables, the consequences of being identified may have catastrophic effects on their lives.
Conclusions
The time has come for an overhaul of the current regime. The CPS should lead the way with guidance designed to raise public consciousness as to the potential sanctions for using online media. What form such guidance or changes may take, having particular regard to the requirements of the Human Rights Act, is yet to be seen. In any case it will certainly give academics, lawyers and the CPS something to tweet about while they await further statements from the Attorney-General’s Office.
Laura Scaife is a trainee solicitor at Hill Dickinson. You can follow her on LinkedIn
