When Tweets Go Wrong

Iain Bartholomew

With the recent jailing of student Liam Stacey for racially offensive comments on Twitter it is perhaps necessary to take a moment and consider the consequences of expressing yourself inappropriately on social networking platforms, whether it is Twitter, Facebook, Google+ or any other form of social media. 

There are a number of questions to which there simply are not adequate answers at this moment in time. Patronising advice, like that offered in this article on the BBC News website, is entirely unhelpful, even if it is creatively presented in rhyme, as the Law Society of England and Wales' criminal law committee chairman Ian Kelcey's warning: "If in doubt don't shout" was. Julian Young, a solicitor advocate, cautions elsewhere in the article that "Twitter is available to umpteen million people, so umpteen people might see". Whilst impressive statistics like that are hard to argue with, the question of what is public, what is private and where the distinction lies is not so clear cut as the authorities would have you believe.

We should make no mistake: the comments made by Stacey were abhorrent and unacceptable and if uttered in public very likely to cause offence, however whether they constituted a criminal offence is another question. Fortunately, as this is a tech blog, we can sidestep the legal question altogether - as the court was able to do courtesy of Stacey's guilty plea.

What remains is the question of how comments on social networks are treated by the courts in general. It is apparent from the Crown's approach to this matter and famously to the 'Twitter Joke Trial' case of Paul Chambers, that they consider all tweets to be in the public domain, but can the comparison with a public place really stand up? What seems clear is that the courts want to fit new technology in to their existing laws and structure without having to go to the effort of considering whether they are appropriate.

Many of the laws being used to prosecute people for twitter comments pre-date the internet as we now know it and none directly contemplate the use of social media platforms. Is it really appropriate to rely on laws drawn up in relation to one state of affairs to police an entirely new set of circumstances? The existing legislation is inadequate and inappropriate and the result is the prosecution and imprisonment of people who may be idiots and who may be very offensive, but ought not to be considered criminals.

Causing offence is not illegal, as many "edgy" comedians know to their profit. Being racist is not illegal. Swearing is not illegal. Not having sympathy for the death of a stranger is not illegal. Criminality is easy to identify if the perpetrator is using a direct method of contact, such as @ replies on Twitter or posting directly on to somebody's Facebook wall, but it is likely that other content generated by users will also be considered 'public'. The approach seems to be that if it is possible for a victim to gain access to the content of the message, even if they have to proactively seek it out, this will be sufficient for prosecution to follow.

Indeed, Facebook content is increasingly being used in matrimonial proceedings, even where the party presenting the content would not have had direct access to the other's posts.

Legal systems around the world are not built to cope with the challenges presented by the burgeoning social web, but that will not stop them trying to control it. One day we may see someone challenge the application of the law to these facts, but until such a test case arises the advice must be to remain cautious, remain aware of who may be able to gain access to your content and remember that you are responsible for the statements you choose to make online.

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