Posting a risqué joke? Maybe you should think twice! With so many recent developments it is understandable for individuals to be concerned about getting into trouble when publishing something online. Criminal charges for posts on social networking sites such as the infamous Robin Hood Airport bombing case and recent arrests for malicious communications are serious warnings to members of the public.
Yet in reality it remains unclear to most members of the public in what circumstances they might get into trouble or even face criminal charges. Clarity is, at least in part, likely not helped by the fact that the actual language used by a defamer, harasser, or an accused is often not widely reported, often out of concern for the victim, fear of further criminal charges or even of civil action for republishing the communication.
On 19 December 2012, the Director of Public Prosecutions published interim guidelines setting out the approach prosecutors should take in cases involving communications sent via social media. These guidelines aim to balance the criminal law with freedom of expression, and, to protect individuals from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, even if found distasteful by others. Credible threats and harassment will be prosecuted robustly whereas grossly offensive social media postings will only be prosecuted if they cross a high threshold. Even so, it is not yet clear how the level of humour or seriousness of a post will be viewed by prosecutors let alone a court. These guidelines are only interim ones and are subject to a three month consultation, but they do at least go some way towards clarifying what may be permissible. It is quite apparent that careful thought has gone into drafting them. There was an Inforrm post about them at the time.
Criminal law aside, the civil law still has considerable bite. Whilst it’s a shame that Lord Justice Leveson’s remit did not cover the internet, in fairness it’s easy to see why not, as it’s quite a tough nut to crack. However, the internet isn’t the free-for-all some thought it was. Lord McAlpine has brought this to everyone’s attention by issuing numerous actions for libel against those who published accusations about him.
The reality of civil law in England and Wales has always been that posts online can amount to a publication within this jurisdiction and Claimants may be able to bring legal claims including for defamation, misuse of private information, harassment, or breach of data protection rights.
Revelations published on Facebook and Twitter by “anonymous” users have made protection of privacy in England and Wales only slightly more difficult. However, users need to realise that anonymity will not protect them if they have breached the legal rights of others. There are legal ways to obtain their details in both civil and criminal cases.
As Charlie Brooker jokingly observed, maybe it’s time to start compiling a friendly “highway code” for social media usage. In reality, that might not be a bad idea. The safest option is always to think twice, or even better three times, before posting something derogatory or disclosing someone else’s private information to the world at large. Alternatively, and here’s a thought unpopular though it may be, perhaps we should all just be more civilised and avoid derogatory, offensive or intrusive postings. Most of the time it is obvious whether something is appropriate or not.
Gillie Abbotts is a solicitor and associate at Michael Simkins LLP in the reputation protection division.
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