In an era of instant communication, social networking platforms have become an essential part of most people’s daily lives. Increasingly most news comes from Twitter before the conventional press outlets. Indeed, it would be accurate to state that the law is struggling to keep abreast of these changes. There is a widening gap between the speed of technological innovation and the laws set up to govern what goes on online. To make matters more complicated there is a cultural gulf between the public and the judiciary, whose task is to interpret and apply those laws.
This Gulf was depicted in the Twitter joke trial, in which Paul Chambers’ tweet landed him with a conviction for sending a menacing message under the Communications Act 2003. He has since taken his appeal to the High Court and judgement is awaited. A solidarity campaign has exploded on Twitter, with many retweeting the original tweet, users using the hashtag #iamspartacus and Stephen Fry offering to pay his legal costs.
It has proved difficult to prevent the public from breaching privacy online. This was made clear when online users named Ryan Giggs as the subject of an injunction referring to an extra marital relationship with Imogen Thomas. Both can now be named as the anonymity provision of the injunction has since been lifted. The case highlighted the apparent inequity of laws being applied to print and broadcast media which, it was suggested, could not be enforced in the same way against those publishing online. This led to a joint committee being established to consider the operation of the law concerning privacy and injunctions. Notably, the committee has recommended that companies such as Google should take practical steps to limit the potential for breaches of court orders though use of their products and, if they fail to do so, legislation should be introduced to force them to.
However, the naming of a rape victim, who was attacked by the footballer Ched Evans, on Twitter led to 12 people being arrested. Victims of rape and sexual assaults are legally entitled to anonymity for life. It is a criminal offence punishable by a £5,000 fine to identify a victim of sexual offence in a programme or publication. In addition, Sky News unintentionally displayed a Twitter feed as part of a report on the users who revealed Ched Evan’s victim’s name. Sky has since issued an apology after the name was flashed on screen for what is believed to have been for about a second. An Ofcom spokesman said that the regulator was not currently investigating to see if Skys error was in breach of the broadcasting code and stated that the incident was a matter for the police.
It would be accurate to state that the changing nature of communication, through the use of networking platforms like Twitter, is having significant implications for the law. Tweeters are being tracked down and held account for their offending Tweets. For instance, a student who mocked the footballer player Fabrice Muamba on Twitter after he collapsed with a cardiac arrest, was given a 56-day jail term. Although Liam Stacey admitted to the offence, racially aggravated public disorder of intent, he lost his appeal against the jail term. Since then Thomas Hammarberg, the Council of Europe’s commissioner for human rights said the sentence imposed by the British courts was excessive. After six years in his post, Mr Hammarberg used his departing comments to plead for greater freedom of expression and to question blanket imposition of traditional media restraints on the internet. His comments go against the views of the attorney general, Dominic Grieve, who has warned that social media sites must not defy the law over such issues as privacy, incitement to hatred or libel.
The use of online forums has meant that harassment has taken an arguably easier form. For instance, Tory MP Louise Mensch has hit out at "sexual insults and slurs" aimed at her over the decision not to back a select committees criticism of media baron Rupert Murdoch. The legislation available for pursuing such Tweets include, the Communications Act 2003 and the Malicious Communications Act 1988 concern offences of communications with intent to cause distress, anxiety or are grossly offensive.
Ms Mensch has been subjected to a barrage of abusive messages on Twitter as a result of her decision. Insults directed at the MP have included "whore", "bitch" and one message said "given half the chance, youd strangle her". An internet “troll” also tried to send Ms Mensch off Twitter by sending her an email threatening the lives of her children has been warned he could be jailed for six months. Frank Zimmerman has claimed that his email account was hacked and he was not responsible for the email. However Judge Martin Brown said he was satisfied the case against Zimmerman had been proven. He will be sentenced on 7 June 2012 at Cheltenham. Despite this Ms Mensch defended the use of Twitter stating that “its not Twitters fault, Twitter provides a social media platform. Its the fault of the users; they have to be responsible for their own words and what they say."
Another case has involved a tweeter who posted "fantasy information" about Gulf Keystone Petroleum, an oil company. Spencer Freeman’s tweets caused Gulf Keystone enormous damage, culminating in a share price collapse. Mr Freeman gave undertakings that he would end his Twitter campaign and was warned by Mr Justice Bean that he could be in contempt of court if he does not keep his word.
Barrister Matthew Nicklin, for Gulf Keystone, told Mr Justice Bean in written submissions: "What he has posted on Twitter, he has admitted, is fantasy. But it has caused huge damage to Gulf Keystone." Gulf Keystone complained last June and Mr Freeman apologised stating that he had been “very naive” and would “never do anything like this again”. However, Mr Nicklin said Mr Freeman broke his promise and "threatened Gulf Keystone that he would embarrass it if it did not sell one of its assets". Mr Nicklin added: "His posts gave the impression (it is to be inferred, deliberately) that Mr Freeman was someone who was privy to sensitive inside information about Gulf Keystone". He went on to state that Mr Freeman "recommended that people should purchase Gulf Keystones shares on the strength of his information, all of which was, in fact, simply fantasy."
This resulted in Gulf Keystones share price collapsing and the firm having to deal with the fall-out and engage on a substantial damage limitation exercise, including urgent announcements to the markets. Mr Freeman, who deleted his account in early May this year, told Mr Justice Bean that he had “no comment” and agreed to the undertakings. The judge made an order confirming that Mr Freeman agreed not to publish statements about sales and sharing placing. No criminal proceedings under the Malicious Communications Act 1988 have as yet been brought but if sought could possibly result in a custodial sentence.
The law is struggling to strike a balance between freedom of expression, privacy and justice and it likely that more regulation will be enforced.
Frank Zimmerman, aged 60, who sent a highly offensive and threatening email to Conservative MP Louise Mensch has since been given a 26-week jail sentence, suspended for two years. Mr Zimmerman has also been made subject of a restraining order forbidding him from contacting Ms Mensch and other high profile people including businessman and television star Lord Sugar and newspaper columnists.
In sentencing district judge Martin Brown told Mr Zimmerman that the message to Ms Mensch warranted a custodial sentence but decided against sending him to prison immediately, partly due to his age and “problems” he suffered. Judge Brown went on though to state that he had committed a very serious crime and that the comments “went beyond mere mischief”.