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Social Media and the Law

November 01 2012

Recently there have been a number of high profile cases involving information posted on social networks. The abuse of Olympian Tom Daley, messages regarding missing schoolgirl April Jones, and the naming of Lord McAlpine in relation to false child abuse allegations have all been in the news. There have also been a number of legal developments in this area.

The Protection of Freedoms Act 2012 has created two new offences of stalking, in force from 25th November 2012. There is no strict legal definition of stalking; it is merely a specialised form of harassment as defined under Section 2 of the Protection from Harassment Act 1997, with a number of defined actions highlighting what may amount to stalking. In relation to the use of misuse of social media, the conducting of the following defined acts may be of relevance:

  • contacting, or attempting to contact, a person by any means
  • publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person.

In a recent lecture in Newcastle-upon-Tyne, Keir Starmer, the Director of Public Prosecutions, indicated that he intends to issue guidelines for prosecutors on social media cases. Mr Starmer has recognised the growing difficulty in applying existing laws to the ever-evolving area of social media.  The Communications Act 2003 makes it an offence to send a communication using a public electronic communications network if that communication is “grossly offensive”, but it is the balancing of freedom of speech against the ease with which comments can become globally visible that is the difficult aspect. This makes the context and circumstances of each individual case very important. Previous social media cases suggest that a number of factors are crucial:

  • Was the comment intended to be offensive or humorous?
  • Who were the intended audience?  For example, was it a comment intended just for friends, was it deliberately made globally visible, or was it sent directly to those that may find it offensive?
  • Was reasonably swift action taken to remove the message, once it was clear to the poster that it had been found offensive?
  • Was remorse expressed in relation to making the comment?
  • Was this a one-off, or is there a series, or other history, of similar messages?

We look forward to Mr Starmer’s draft guidelines on this matter, which are expected to be published shortly.  In his words, “the time has come for an informed debate about the boundaries of free speech in an age of social media”.

So, what can Keith Borer Consultants bring to your case?

Firstly, the context of a message is critical in assessing whether an offence has taken place. If the poster or sender of a message has taken appropriate action and deleted the post in question this can be a difficult proposition. We can examine any computers used to send or receive messages in attempt to recover deleted information, including “chats” from the past, that may show the current posting in a different light, for example by demonstrating a jovial relationship between the defendant and complainant. We can also examine the format of any messages exhibited. For example, it is common to see recovered chat logs where “emoticons” (such as smiley faces) have been inadvertently missed due to formatting issues; clearly a “smiley face” can completely alter the tone of a message. On Twitter, for example, the web browser used to view the “tweet” can affect the display of an emoticon, so a complainant may genuinely not know that such content was present.

Each case is different, and social media is constantly evolving, so I would encourage you to contact us to discuss the exact circumstances of your case. Social media presents a unique challenge in establishing and preserving the reliability of evidence. Traditional physical evidence can be seized and is fixed thereafter, whereas evidence on social media can be altered or removed remotely, deliberately or automatically. Timeliness is therefore a priority.


Ross Donnelly

Ross Donnelly

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