Tweet and Contempt

This article appeared in the solicitors Journal on 30^th January 2014 and is reproduced with their kind permission

Making court advisory notes to the public is a sensible move but will the growing army of citizen journalists take any notice, asks Amber Melville-Brown

Tweeters, bloggers, Facebookers beware: with great power comes great responsibility. And with the world at your fingertips at every stroke of the keyboard, you have great power. It has prompted Dominic Grieve QC, the Attorney General, to make court advisory notes – previously only issued to the mainstream media – available to the public on the UK.gov website and across Twitter (see Solicitors Journal, 4 December 2013).

Over the last decade, the pace of technological advancement has spiralled, thanks to the democratising force of the internet and the plethora of social media sites that rule the way in which many of us now communicate. E-mails, tweets, blogs, a myriad of social media options -great social tools, opening doors for the physically or socially marooned and widening access to learning and communication. But they are not risk free and the potential for anti-social behaviour arising out of social media is significant.

Educating the public

The particular risk with which the Attorney General is currently grappling is that of contempt of court. It is a strict liability offence under the Contempt of Court Act 1981 to create a substantial risk of serious prejudice to active legal proceedings. So while the Attorney Generals have historically issued advisory notes only to mainstream media to highlight the risks of contempt of court, today news and views are pushed at us 24/7 via Twitter, Facebook and other social media sites. Those largely uneducated as to the complexity of publication laws need to be warned too.

The risks are not theoretical, as shown by various high profile issues involving social media; from the tweeters who named a girl raped by a footballer; to the juror who exceeded her remit by researching her case online; to the naming, by Peaches Geldof, of two mothers whose babies had been sexually assaulted in a high profile case. Dominic Grieve’s decision to issue his advisory notes via Twitter is timely. He explains, it is “not about telling people what they can or cannot talk about on social media” but to attempt to reach out to citizen journalists and stop from breaking the law, wasting court time, escalating costs and importantly from threatening justice in the process.

But will the tweeting of what may be rather dull, legal advisory notes actually reach the requisite and relevant audience? Unlike those of many attention-seeking celebrities, the Attorney General’s Twitter feed boasts a measly 4,559 followers. The recent celebrity-based cases which have grabbed the headlines have, ironically, done the AG a service, enabling him to ride the wave of public awareness of these issues for the time being, and achieving publicity for his decision to bring his advisory notes into the 21st century. But he may have his work cut out in continuing to educate and warn the public on an ongoing basis. Unless his notes start miraculously to trend. Or perhaps are made more attention grabbing by the use of an unlawyerly sexy hashtag.

Great risk

With great power comes great responsibility. And with great responsibility comes great risk. While a bedsit blogger, a fresh-faced Facebooker or a twit of a Tweeter may decide they are not going to be told what to do and carry on with seeming impunity, they would be unwise to risk doing so. Sanctions for contempt of court include significant fines and even a sentence of two years’ imprisonment. Indeed, Theodora Dallas, a juror who was found to be in contempt of court for conducting internet research, was sentenced to six months’ imprisonment. Although she has appealed her case to the European Court of Human Rights, there is no doubt that our courts, as the AG has shown, are intent on ensuring the protection of our criminal judicial system and those who find themselves at its mercy.

Those who enjoy using social media are not going to be told to shut up. And rightly so in a vibrant democracy. But they need to wise up if they are going to use this great empowering tool, safely, both for our their protection and the protection of society as a whole.

Amber Melville-Brown is a partner and head of Withers reputation management practice