Social media and the law - How to stay out of trouble when using Twitter and Facebook
12:00 09 May 2012
To millions of people all over the world it’s become the most natural of acts.
You see, read or hear something you like, dislike or are interested in and want to share your views with a wider audience.
And now, thanks to the great strides in communication technology in recent years, you can do so within an instant. In a matter of seconds your words can be read by someone on the other side of the world.
Such is the rise in internet social media sites, such as Facebook, Twitter, YouTube, Flickr and website message boards to name but a few, that everyone on the planet has the potential to become a publisher of words.
But, as the saying goes, words can be a powerful tool – and an increasing number of people are not being careful how they use them.
This is why, in the past couple of years, the courts, police, Crown Prosecution Service (CPS) and solicitors are having to deal with more legal cases, both civil and criminal, involving postings made on the internet – and in particular social media sites.
As more and more people look to have their views heard by a wider audience, more are abusing those powers, and landing themselves in hot water.
Recent high-profile national cases where social media has been cited include footballer Ryan Giggs’s attempt to block details of his recent affair, where Twitter users openly posted details even though the media were barred from doing so, and the arrests of people accused of naming the victim of the rape case in which former Norwich City footballer Ched Evans was found guilty.
In Norfolk, meanwhile, a football fan was banned from attending Norwich City matches for racist tweets and a police investigation was launched after vile messages were left on social media sites set up in honour of a Norfolk teenager who died.
Such is the rise in criminal cases involving social media, Norfolk police has set up a project, headed up by temporary joint assistant chief constable Sarah Hamlin, to look at how the force may have to adapt its work in the future.
Chief Supt Bob Scully explained: “The level of access to social media has gone up and, therefore, so have the crimes committed on them.
“However, there is a great deal of work being done within police forces and the Association of Chief Police Officers (ACPO) to make sure we are equipped and able to prevent these crimes from taking place and, where they do, punish those responsible.
“We are looking at how we need to adjust some of our priorities to be able to respond to social media.”
According to Chief Supt Scully, the message is clear – a crime is a crime no matter where it is committed.
He said: “Being on social media can seem like a very private activity. But we hope that people realise that the same rules apply.”
Currently there are few figures available to capture any increasing trend of crimes involving social media sites.
However, recent figures revealed following a Freedom of Information request, showed that between 2009 and 2011 there was a rise in reports of crimes related to Facebook. These were wide ranging from harassment, to assault and even rape.
As Chief Supt Scully explained, it is not just the committing of crime where social media is having an impact.
He added: “We have seen people committing crimes on social media, but also talking about crimes they have committed, which is one of the many positives.
“We are also finding that a lot more crime is being captured on film. For instance with the London riots the evidence collected on people’s mobile phones was key to being able to catch some of those responsible.
“There’s also the opportunity for examples of really good citizenship to come through, such as when we have a missing person and we put that on Twitter and within minutes it has been seen by thousands of people. This is where it can be a fantastic tool.”
However, Chief Supt Scully did admit there were instances of crime being committed on social media that were of particular concern, especially the rise in cases known as “trolling”, where people leave abuse on pages set up in tribute to someone who has died.
He added: “What a nasty and insidious crime that is. If people do that it is always something we will investigate.”
Frank Ferguson, district crown prosecutor for CPS Norfolk, said the types of legal cases it increasingly dealt with involving social media fell into three categories.
He said: “Firstly, where people have committed an offence through abusing or bullying someone else, so that could be harassment or racism.
“Then we have the types of postings where the message results in an offence, such as someone is having a party, thousands turn up and criminal acts follow at that party.
“Thirdly we have seen many cases where someone has committed and offence and then goes on to social media to brag about what they have done. This is an example where it can help us to track someone down.”
It is not just criminal cases that are being created because of social-media postings, but civil as well, such as potentially expensive libel hearings.
Tony Jaffa, a partner with media law specialists Foot Anstey Solicitors, believes many people are ending up in trouble through their online postings because they believe they are immune from responsibility.
However, he warned: “It is very simple really because nothing has changed in terms of the law; what has changed, though, is that everybody is now a publisher.
“Every single journalist, to a certain degree, is trained to either know or at least recognise when things can or cannot be published. However, certain sections of the general public just are not aware of this.
“People seem to think that, in some way, talking on social-media sites is no different to bar talk.
“However, the law treats it very differently to bar talk and ignorance is simply no defence.”
His firm is dealing with an increasing number of cases involving social media, but warned that libel cases were a particular area where many more cases would emerge. Often these may not land someone in jail, but the punishment can still be severe.
Mr Jaffa added: “If you lose a case for libel the damages may only be between £3,000 to £5,000, but it is the costs that really ramp up, especially if you have to pay them for both parties.
“We are talking serious money for some cases. This means that, if you can’t pay it, everything is being put at risk – your house, your car and perhaps even your job.”
Due to the fact the number of legal cases involving social media are still relatively rare, there exist many grey areas, one of which is who exactly is culpable should a damaging message appear on a website.
Say, for instance, a highly libellous post is made on an Archant website by a member of the public.
The hosts of that website have immunity as long as they are seen to have behaved reasonably and taken down the offensive content at the earliest possible opportunity. However, that does not extend to the author. If, however, the hosts have not removed that content in reasonable time, the fact they too could find themselves in trouble does not mean the punishment is shared. Quite the opposite in fact, as the host may be within their rights to launch a counter claim for damages against the person who published the offensive material.
Companies such as Google, Facebook and Twitter have so far successfully argued they are not responsible for content posted on their sites.
With the number of test cases involving social media still minimal, it seems likely that unique scenarios will crop up over the next few years.
According to Mr Jaffa, the message is clear – think before you type. He added: “Take the case of the man who was disgruntled with Doncaster Airport and tweeted that he was going to blow it up. No one surely took it seriously, but the authorities did and that person now has a criminal record.
“It means their car insurance goes up, they can’t get into the United States and it could prevent them from getting a job in the future.”
So what is the psychology behind the use of social media?
Anyone who regularly uses social media will have noticed there are some people who will make comments or post material they simply wouldn’t share in any other arena.
One of your friends, for instance, may post something offensive, and possibly liable to land them in trouble with the law, to their dozen or so followers, that you know full well they wouldn’t be prepared to say in front of the same 12 people down the pub.
So what propels them to act differently?
According to Simon Hampton, a lecturer in the school of psychology at the University of East Anglia, there are a series of reasons, which include a desire to be part of a group, an urge to be famous or at the very least notorious and the mistaken belief that what you post cannot be seen by the wider world.
He explained: “I do think that when people are on social media sites it can play tricks on them. If this stuff is being done in people’s private spaces, such as their homes or bedrooms, you can see why it might trick someone into thinking they are not doing it in public.
“You can draw comparisons with cases of road rage.
“Studies show you are less likely to commit road rage if you drive a convertible, as these people know they can be seen.
“Similarly, not only is it very easy to express your views on Twitter, it is easy to feel like you can’t be seen and that may impact your behaviour.
“It is called individuation and something you see at football matches.
“I watch Norwich City and there’s a supporter near me who changes as soon as the game begins.
“They become enraged, then at half-time goes off and has a cup of tea and is fine until the game starts again.
“They think they cannot be seen in that environment; they are being individuated and cease to be themselves; instead just a Norwich City Football fan, part of the crowd.”
He explained that each and every one of us behaves differently in different scenarios.
For instance, when you are with your wife or husband, your friends or at work – and being at the keyboard was another example of this.
It is not that one of these is the real you, simply different sides of the real you.
And he feels the desire of some people to not only be heard, but noticed, and therefore take risks where they previously wouldn’t, can be traced in the sudden and recent rise in the popularity of reality television shows.
He added: “We find a majority of people are usually motivated by three things; money, power or fame.
“Often one will come in the other’s wake. I think for some people being part of the twitterati does give them an illusion of fame or notoriety.”