The rise of social media in recent years has created a new range of tools for instant universal communication and interaction in both personal relationships and at work. We use tools such as Twitter and Facebook to post photos, talk to our friends, provide information or news to our customers, or to track or promote items of interest and concern in our lives or at work. Professional networking tools like LinkedIn are used extensively in the work environment to establish business connections and cultivate links with our peers, while blogs are increasingly used to provide information to our colleagues, friends or service users. Even media network services like YouTube can be used as training tools or to exchange and promote ideas in an audio visual format, or to make comments on those of others.
But how many of us are fully aware of the scope and reach of these communication tools, and take due care in, and responsibility for, what we say, or how we say it, to avoid misunderstanding which causes serious offence or, even worse, steps over a legal boundary we are unaware of, risking prosecution?
Interestingly, a 2011 survey by DLA Piper and YouGov revealed a decline from 2008 to 2011 in the number of people who have had a comment or post on a social media site removed. The decline could indicate that the monitoring of social media is decreasing, possibly in light of the huge numbers of posts and re-posts going out every day swamping the site administrators responsible for mediation and moderation. Or perhaps the extensive media coverage regarding privacy claims, super-injunctions and the ‘outing’ of celebrities on Twitter, where users of social-media have been held to account for their online actions, has focussed people’s minds?
Social media communications casesThe Crown Prosecution Service has had to deal with about 60 allegations involving posts on Twitter and Facebook in the last 18 months. These include several high profile cases which have come to court, most notably the tweet from Paul Chambers, joking about blowing up Doncaster airport, which led to a prolonged court battle known as the Twitter Joke trial.
Another memorable example was the arrest of a 17 year-old after a series of tweets he directed at Olympic diver Tom Daley. Mathew Woods’ grossly insensitive comments about missing schoolgirl April Jones, and Azhar Ahmed’s offensive views on our soldiers in Afghanistan, were brought to court and produced custodial sentences. Such communications range from the misjudged, tasteless or inappropriate to the insensitive, cruel and offensive, but the ever-increasing volume of communication on-line could result in the CPS being swamped by cases that allege posts are “grossly offensive,” where, in many cases, a prosecution is unlikely to be in the public interest.
As Lord Chief Justice stated in Chambers v DPP  EWH2 2157 (Admin): “… a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a)(of the Communications Act 2003)], for the simple reason that the message lacks menace.” (Paragraph 30)
And Lord Bingham explained in DPP v Collins  UKHL 40 that: “There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context”.
In his UK Human Rights Blog post for Oct 9 2012, Adam Wagner also comments on the difficult issue of consistency:
what is the difference between Matthew Woods’ sick jokes …and famous comedian Frankie Boyle’s, who joked about missing child Madeline McCann and Jimmy Saville on Twitter just last week … which was retweeted/favourited by nearly 2,000 people?
Freedom of expressionAndy Wagner also raises the important issue of free speech: Many people
would say that freedom of expression rights should not protect people who make grossly offensive jokes. …The problem is that once the state starts policing speech and thought … people become frightened to say what they feel and instead say what they think they ought to say. Such a climate would undoubtedly place a chill on the wonderful, bizarre, entertaining, sometimes concerning but always interesting world of social media.
In a New Statesman article, the Director of Public Prosecutions, Mr Starmer, pointed out that the laws used to convict in these cases were passed before either Facebook or Twitter had been invented, and so it was now a huge problem for the CPS knowing how to police the billions of communications made, and then re-posted, publicly on social media where ‘Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous.’
On 19th December 2012, after a consultation with lawyers, experts, and representatives of the social media networks, the CPS produced a 14-page guide to assist those looking to prosecute cases involving social media communications.
In their press release the CPS stated that these guidelines are designed to give clear advice to prosecutors, ensure a consistent approach and: to strike the right balance between freedom of expression and the need to uphold the criminal law.
For potential prosecutors and police, the guidelines seek to distinguish communications which either:
- constitute credible threats of violence to the person or damage to property;
- specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997 or
- may amount to a breach of a court order,
- communications which may be considered grossly offensive, indecent, obscene or false.
The consultation agreed that in the first three instances, cases should continue to be vigorously prosecuted using existing laws such as: section 16 of the Offences Against the Person Act 1861; section 4 of the Protection from Harassment Act 1997 and section 127 of the Communications Act 2003. And where communications target a specific individual and the offence of blackmail is made out, prosecutors should seek to prosecute the substantive offence.
For communications which may be considered grossly offensive, indecent, obscene or false, the consultation proposed raising the threshold to a more reasonable level before seeking to prosecute and punish with prison sentences. According to the prosecutor, the aim is to develop a set of guidelines that will allow authorities to more easily and effectively work within the parameters of the law, while introducing options other than criminal prosecution.
The guidelines will hopefully bring some much-needed restraint to the social media prosecutions, helping to make clear distinctions between material that is merely offensive, to whatever degree, and material that is part of a campaign of harassment, credible threat or clear incitement to violence. Prosecutors already have a duty to ensure that any prosecution is in the public interest as long as the “public interest” is interpreted with a very strong emphasis on free expression rights under Article 10 of the European Convention on Human Rights.
Already, some leniency had been shown by the courts where remorse has been shown, and a message has been swiftly removed when the person realised it was inappropriate. In such instances in future the police may consider it unnecessary to proceed to prosecution.
Public order act
There was a recent further development towards the protection of free speech when, in January 2013, a House of Lords amendment was approved removing the word “insulting” from Section 5 of the Public Order Act 1988. This followed intense lobbying by the Reform Section 5 campaign led by the Christian Institute and the National Secular Society, with major supporters including Rowan Atkinson and Peter Tatchell.
Social media in the workplace
Increasingly businesses are using social media networks as powerful communication tools – for promotion of goods and services, news and alerting services, client-provider communications, and even public relations. This brings with it the growing need to set clear standards for using social media in a work capacity via a social media policy, which includes employees using these networks for work purposes as well as their use of personal networking communications where their employer is, or may be considered to, be implicated.
The Law Donut have produced a useful checklist, ‘Social media and the law’, which gives guidance to businesses in establishing a social media policy. As well as paying attention to the big legal issues, such as copyright, intellectual property, defamation and data protection, which can too easily be infringed by online communications made without due care and awareness, it shows how important it is to set standards for public comments employees might make in their personal social media posts about your business, your other employees, your customers or your competitors. You can also use your social media policy to bring to your employees’ attention all of the above concerns regarding potentially offensive posts, particularly if they can be identified, via their profile, as an employee who may be considered to be speaking on behalf of their workplace; a standard disclaimer will often suffice (see the bottom of this post).
A useful practice note is provided by The Law Society, for all legal practitioners and practices interested in making better use of social media, and particularly for their compliance officers. This explains not only the value of using social media tools but also the importance of being aware of the risks and legal issues involved.
Co-incidentally, as I was writing this post a staff email arrived detailing our own, Bodleian Libraries’ social media policy. I have checked to make sure this post complies, but just in case of issue:
The postings on this site are my own and don’t necessarily represent the Bodleian Libraries’ positions, strategies or opinions.