Wednesday, 21 November 2012

We’re all amateur lawyers now? If not you’ll need to be.

John Bromley Davenport QC talks about social media law and sentencing 
The Lord McAlpine-affair has just shown how unclear, legally speaking, the world of Twitter is. For years it’s pretty much been a verbal free for all. A world where internet trolls can hide behind the cloak of anonymity and reduce the lives of others to misery. But we’re now in a post-McAlpine world and that world is heralding a new age. An age in which we’re all going to have to become amateur lawyers.

The BBC’s The One Show looked at the problem which you can watch here. Presenting the segment Tony Livesey was right to say that increasing numbers of social media users are being prosecuted for posting nasty comments on Facebook and Twitter. However there is real unclarity over the issue of what can be said and what can’t. Further confusion comes from the lack of sentencing guidelines.

Toney Livesy then told the story of a person given an 8 month suspended sentence for a sexual offence because of mitigating circumstances whilst a racist Facebooker was jailed for 8 weeks. This is undoubtedly shocking but it goes to highlight what a dark area of the law this is.

So Tony Livesey went to John Bromley Davenport QCto clear things up. Tony then asked: are there really instances when a facebook message can be dealt with more severely than a sexual assault? John Bromley Davenport QC quite rightly said that we cannot pass judgement without know the full facts of the case and made assurances that the judge would have taken everything into consideration in order to deliver a full and fair judgement.

Toney then asked: why are social media crimes receiving such high sentences? John Bromley Davenport QC said that it’s due to a number of circumstances. Partly it’s due to being the fact that it’s the flavour of the month and partly the fact that the establishment, police and judges are taking a dim view on it.

It just goes to show what is shaping decisions and the dire need for proper legal clarity to be delivered on the ever-expanding area of life. Fortunately social media sentencing guidelines should be published before Christmas. Unquestionably it’s guidance that not only the authorities need bu also we the Tweeting public.

Yes ever since Lord McAlpine’s legal team announced that they would pursue many of those who Tweeted libellous content, we the public have started to click onto the need to adhere to some basic standards of good Tweeting conduct.

But as the guidelines approach there’s anticipation that judiciary will start to take a more relaxed view on what’s offensive. The authorities are dealing with roughly 50 cases a week of complaints of offensive comments made on Facebook and Twitter. But the police have been saying that that is too much. And the director of public prosecutions has even said it’s excessive.

So it’s expected that the rule makers are going to say that if you post content that is part of a campaign of harassment or that it is a credible threat then the police will look into the matter. But if you are merely Tweeting offensive or even grossly offensive content then it’s likely that social media users will get away with it.

The director of public prosecutions did note recently: the right to be offensive has to be protected and the threshold therefore for prosecution in that case has to be high.

So it looks like you would have a real go at someone on Facebook or Twitter and target them over a prolonged period or in a highly threatening manner before you could expect to get a knock on the door. Certainly you could be pretty offensive on Twitter so long as you don’t overstep the mark and go into threatening or harassing territory.

The McAlpine-affair is already and will continue to materially affect the way that the public uses social media. It’s almost a surety that some sort of legal precedent and change in behaviour will emanate from the shameful episode. As Lord McAlpine’s lawyers said: Twitter is not the place where you can gossip with impunity, we’re now about to demonstrate that.

Up until recently 340 millions messages a day are sent on Twitter and people have felt that they can say whatever they feel like. But since the truth came out about Lord McAlpine the public have taken a collective “gulp” and taken on a collective realisation that social media isn’t just a verbal free for all.

Rather Twitter and social media is a public space like no other and therefore you must exercise restraint and respect the integrity of others in that public space.  

So yea you can give off and say that a TV presenter has a big nose or an annoying voice, but you cannot  slander their sexuality or race. The distinction will not always be as clear but ultimately as Tony Livesey said:  “everyone who uses Twitter or Facebook now will have to become an amateur lawyer at best and learn what can and can’t be said.”

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