An Own Cole: Twitter and Footballers
Chelsea footballer Ashley Cole has been charged by England’s Football Association for comments made on social media network Twitter in relation to the John Terry racial abuse allegations. Laura Scaife examines measures that clubs can take to avoid issues involving social media.
This article was originally published in the November edition of the World Sports Law Reports.
n October Ashley Cole was charged with misconduct by the FA for the contents of a Tweet after he reacted furiously on Twitter to doubts expressed about his evidence in the John Terry racial abuse case. Cole’s tweets have highlighted that while social media provides opportunities to interact with fans and offer sponsorship opportunities, there are potential pitfalls for clubs which they need to be alive to when their players engage with social media. In light of the Premier League issuing guidance on players and their use of social media back in the early summer, this article will take a look at some of the issues which need to be considered from the perspective of the football club (with a wider application to other professional sports bodies). It will conclude by suggesting that there is significant merit in clubs of forming their own bespoke social media strategies which address such issues and put into place suitable safeguards to limit a clubs exposure to risk.
“An own Cole”
In response to John Terry’s racial abuse case, Cole called the FA a "bunch of t***s" on Twitter after he was accused of "evolving" his statement supporting Terry's defence against a charge that Terry racially abused Anton Ferdinand. While inflammatory in itself, the matter was fuelled when Alan Shearer called for Cole to be banned from Roy Hodgson's squad for the World Cup qualifiers against San Marino and Poland rather than receive a fine for his behavior.
Cole responded by retweeting a comment on Twitter by @CollinR4 which referred to a Newcastle v Leicester match in 1998 when Shearer's boot made contact with Neil Lennon's face:
"Alan Shearer says @TheRealAC3 needs to be banned for comments. I want his opinion on bans for kicking Neil Lennon in the head. GlassHouses".
As a result Cole faces discipline from the FA and his own club for the contents of his own post and for re-tweeting those of @CollinR4.
Cole is not the first player to fall foul of social media. Ryan Babel was the first Premier League footballer to be charged by the Football Association due to postings on a social media site. Following a match between Manchester United and Liverpool, Babel retweeted (forwarding another person’s tweet) a photograph of the match referee, Howard Webb, which contained the comment:
“[a]nd they call him one of the best referees? That’s a joke”
The picture which accompanied the Tweet showed a digitally manipulated photograph of Webb which had been altered so that it appeared that he was wearing a Manchester United team shirt. Babel subsequently apologised and was fined £10,000 despite the fact that Babel merely retweeted the posting of another rather than authored the tweet himself. The sanction imposed could offer some insight as to the punishment which Cole may face for re-tweeting the post by @CollinR4 in addition to the punishments for his own direct postings.
With the frequency of such occurrences increasing it is suggested that clubs need to set in place procedures to manage their player’s online presence and the content of posts which by association can be linked to their clubs.
Social Media Policy As the use of social media becomes more prevalent and players increasingly use the medium in order to engage with fans, clubs need to consider what measures they need to take in order to protect their reputation should similar situations to Cole or Babel arise. One such club which does is Coles. In response to his Twitter outburst, Chelsea manager, Roberto Di Matteo, has responded by stating:
"We've got a social media policy at the club and there's going to be a disciplinary process – action – against the tweet and that's how I'll leave it. The image of the club is very important to us of course. We have rules, and anybody who breaks the rules faces disciplinary action against them. We strive to have high standards and hopefully, going forward, we can be better at showing those."
Surprisingly however, while the FA have recently mentioned the introduction of guidance for players on the use of social media and the Premier League having already produced their own guide, a number of professional sports clubs do not have an established social media policy either included in the playing contract or given to and agreed by the player. It is clear that there can be no “one size fits all” approach and while a comprehensive review of all aspects of a clubs targeted social media strategy are beyond the scope of this article, a good policy could be based around the following areas.
Player Education
Just like any other employee/employer relationship, the policy should set out what players can and should not comment on and needs to be communicated to players effectively. In order to do this it is important for clubs to educate their players as to the potential pitfalls of inappropriate use of social media and the likely sanctions they will face for non-compliance such as a ban from playing as well as fines from the governing body or players club.
Players should also be aware that sanctions do not end at the club doors; there may potentially be serious legal consequences arising out of their posts such as potential claims for defamation or racial abuse. After Arsenal Football Clubs midfielder Emmanuel Frimpong sustained a serious knee injury sustained while on loan at Wolves, Frimpong posted a message on his official Twitter account which read "if you going church today Pray For me Giving today A Miss", the Gunners midfielder retweeted a response from one Tottenham fan which read: "I prayed you break your arms and legs", to which Frimpong replied "Scum Yid".
Despite removing the comment shortly afterwards, the comment did not escape the watchful eye of the FA. Frimpong however could have ended up falling foul of the criminal law with the potential for prosecution under s127(1) (a) of the Communications Act 2003. Under s127 (a), a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network. This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins ([2006] UKHL 40), Mr Collins made a number of racist phone calls to the offices of his local MP. In considering if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so DPP v Collins ([2006] UKHL 40 at [9]. In R v Joshua Cryer a case that was also prosecuted under the Communications Act, Cryer was prosecuted and convicted for sending racially abusive messages on Twitter to the ex-footballer, Stan Collymore, and was sentenced to two years’ community service and ordered to pay £150 costs.
If Frimpong had posted a series or string of tweets in the heat of the moment, he may also have increased his exposure to prosecution under the Crime and Disorder Act 1998, like Liam Stacey, who was sentenced to 56 days’ imprisonment for 26 racially offensive tweets (amounting to 2.2 days per tweet) in relation to Bolton Wanderers footballer Fabrice Muamba, for racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress under section 31 (1) (c) of the Crime and Disorder Act 1998. For the CPS, what has been determined as harassment, alarm or distress has revolved upon the particularities of each case.
However, it is not just from a regulatory perspective that Arsenal should have been concerned. The potential exposure for the club to damage due to the offensive content of the Tweet was significant, especially given the large proportion of Jewish fans at the north London club. The Frimpong Tweets also highlight that that sanctions or apologies may not always be enough, in a sense they shuts the door once the horse has bolted. Clubs need to communicate to players in manner that they clearly understand that their posts can be potentially damaging the clubs brand, exposing it to unacceptable reputational risk which could lead to a loss of confidence on the part of both fans and sponsors alike.
Control Content and Privacy Settings
In order to effectively communicate the parameters of what players can post about via social media a number of clubs have set strict guidelines in relation to issues such as matters relating to the club e.g. team selection, comments on fellow players or officials and transfer speculation. However, while guidelines are in place, any policy is only likely to be as good as its enforcement, if this is not the case then there is no guarantee that such policies followed by players (see for example Joey Barton’s tweets (@Joey7Barton) for a number of examples of disputes with fellow players).
In terms of managing such risk, it may be prudent for clubs to consider the implementation of blackout periods for a few hours before, during and after a game when tensions are running high. An example of a situation which would have benefited from this involved a series of Tweets passing between Joey Barton, Gary Lineker and Alan Shearer after they were critical of Barton’s behaviour on the final day of the 2011/12 season. The incident saw Barton sent off and receive a 12 match ban. Barton also admitted during the exchange that he had deliberately tried to get a Manchester City player sent off which was one of the leading factors to him receiving the fourth longest match ban in the English games history. It is arguable that for situations such as Cole’s where disciplinary actions are being taken against other players, there should be additional strict rules on comments made in relation to ongoing FA panel decisions in continuing and recently decided investigations.
In addition the use of strict privacy settings should help to prevent situations of unauthorised tweets/comments being made from player accounts. Any such guidelines or advice should apply equally to persons connected to the player as it is often the case that comments of the player are displayed on their friends’ and family’s pages too. Both Twitter’s and Facebook’s default privacy settings are such that tweets and comments are publicly available. Clubs should be able to provide the necessary advice as to how to ensure the settings can be adjusted to avoid personal information being unintentionally sharing of personal information.
Pre-approval of content
While the steps highlighted above may seem onerous on players, the reality is that often ‘communications’ through player’s websites/blogs are not authored by the player themselves. It is suggested that given the complexity of the issues involved, it may be necessary to have dedicated individuals at the club who handle social media issues for players. If delivered effectively, this should allow clubs to have more control and awareness of any potential representational or legal conflicts and with appropriate damage limitation plans in place, be able to respond to any damaging content quickly and instigate the necessary limitation measures.
Digital media is a specialist area and the specialist skills required to fully utilise its capabilities should not be underestimated. However without the commitment of the key people any planned strategy is likely to be unsuccessful. In order to achieve ‘success’ (measured against internal key indicators) it will be necessary to highlight shortcomings, and quite possibly advisable in the case of skill sets, to bring in consultants and legal consultants to work alongside the existing employees to create, implement and maintain a viable and legally compliant strategy which is effectively communicated to players and enforceable by club officials.
Damage Limitation
Whilst implementing, designing and enforcing an effective social media policy may help to limit a club or other sporting bodies exposure to risk, it is inevitable that situations will arise where unsuitable comments/links or photos have been posted. In this situation the player or club should have a clear and detailed damage limitation plan that should be implemented as soon as possible. While the damage may not be fully contained as it is likely to have been captured or retweeted, it is imperative to minimise the damage/publicity as far as possible as it is often the case that it is how a situation is handled rather that the situation itself which is remembered by fans and fuels media interest e.g. Suarez and surrounding allegations of racism.
In order to deal with these situations, a clubs dedicated social media representatives should respond in an appropriate manner to the situation. In the Ryan Babel example above, in addition to the deletion of the Tweet, Babel subsequently posted:
“My apology if they take my posted pic seriously. This is just an emotional reaction after loosing an important game”
Examples of the sorts of factors which a crisis management plan could take into account may include:
- Clarifying statements taken out of context
- Removing offensive content (quickly)
- Offering an apology should any offence (or potential offence) have been caused.
In order to convey the contents of such a policy to players, a number of clubs have produced “best practice guides” which can act as a quick reference of key do’s and don’ts, scales of potential sanctions and list key contacts within the club who can deal with social media queries.
In addition to familiarising themselves with their clubs social media strategy, as part of a club delivered training programme, it is prudent for players to take responsibility for their digital presence and undertake the following:
- Familiarise themselves with the clubs social media policy;
- Regularly review the content of their personal social media channels;
- Ensure all privacy settings are up to date;
- Understand where the line between professional ends and private begins;
- Logout of social media platforms when not at the computer; and
- Think before uploading content as they may not be able to control who reads it.
Social media offers a previously unparalleled opportunity for engagement with brands, companies and users due to the instantaneous access to significant part of the global population. However, platforms such as Twitter and Facebook need to be handled carefully as part of a clubs (or individual players) digital strategy. It is clear that clubs cannot take a “one size fits all” approach to regulating social media and will need to consider their individual requirements, budgetary constraints and internal skill sets before creating, implementing and maintaining a suitable strategy.
Think a social media policy is unlikely to be that important? I wouldn’t bet your shirt on it…you may not be singing anymore….
Seeing the Wood for the Trees: The Right to be Offensive?
As an emerging technology with nearly limitless boundaries and possibilities, social media has given users unprecedented engagement with brands, companies and other users. It is possible, common even to reach an unlimited audience with the click of a mouse or the use of a smart phone. As such there are few barriers to people speaking their mind and saying what they want due to the instantaneous nature of the technologies employed. Unfortunately, because of the anonymity social media affords, users can express unrestrained and potentially harmful content. This has presented new challenges for law enforcers in the regulation of online interaction. This article will take a look at the recent prosecution of Matthew Wood under s127 (1) of the Communications Act 2003 and consider in light of other recent judgements, what this could mean for the future of the regulation of social media and if as the Director of Public Prosecutions, Kier Starmer suggests, “right to be offensive” should be preserved.
Woods
A freedom of information request has revealed that there were 2,347 investigations after complaints regarding posts on social media in 2010. This number rose to 2,490 in 2011 which in real terms equates to about 50 different cases across the UK each week. It is against this backdrop that Matthew Woods, an unemployed 19-year-old from Chorley, Lancashire, was jailed for 12 weeks for his Facebook “joke” about April Jones, the missing five year old schoolgirl from Machynlleth, Wales and an additional joke about Madeleine McCann, the three-year-old who went missing during a family holiday in Portugal in 2007.
As a result of the public reaction to the comments Woods was arrested for his own safety after 50 people descended on his home. Woods pleaded guilty at Chorley Magistrates court to sending by means of a public electronic communications network a message or other matter that is grossly offensive contrary to the Communications Act 2003.
Martina Jay, acting on behalf of the prosecution, stated: "He started this idea when he was at a friend's house, saw a joke on Sickipedia [an online database devoted to sick jokes] and changed it slightly." In mitigation David Edwards, defending stated that Woods had "in one moment of drunken stupidity placed himself as public enemy number two – behind only the person who carried out this crime." The court was told Woods's Facebook page was available to a large number of people.
Woods's sentence comes as the Crown Prosecution Service reviews how to treat social media and electronic communications in the light of several cases, where substantial sentences have been handed down under the Act for offensive posts on Twitter and Facebook such as Liam Stacey, who received a 56-day jail term after tweeting "LOL" ["laugh out loud"] in response to the on-pitch collapse of the footballer Fabrice Muamba and subsequently posting racist and offensive comments when other users criticised him. More recently a Huddersfield man was given a community sentence for expressing the view that British soldiers in Afghanistan “should die and go to hell”. Last month a man from Liverpool was arrested for creating a Facebook group praising the alleged killer of Manchester police officers Fiona Bone and Nicola Hughes.
The Communications Act 2003 and the meaning of “Grossly Offensive”
Under section 127 (1) (a) of the Act, a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network. The cases above inevitably raise the question of what this may encompass.
In the leading case of DPP v Collins ([2006] UKHL 40), Collins made a number of racist phone calls to the offices of his local MP. In determining if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved an exploration of what would constitute reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its content was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so. However, the Court stressed that individual are entitled to express their views strongly and that the proper question for determining if s127 (1) (a) had been infringed was whether the language used went beyond what could be considered as tolerable in society.
It was in this context that the judgement of DPP v Chambers, dubbed the “Twitter joke trial” was delivered. Paul Chambers was prosecuted under the Act for sending the following tweet:
“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!”
Mr Chambers subsequently appealed to the Crown Court against his conviction. The appeal was dismissed with the judge stating that the Tweet was: “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” However Robin Hood Airport had classified the threat as non-credible on the basis that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal.
On 27 July Chambers conviction was quashed. The approved judgment stated, "the appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further." Interestingly the Court took the view that English law (and prior to the 203 Act) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. The Court also noted that the 2003 Act predated the advent of Twitter and that the statutory reference to "menacing" was itself based on the wording of the previous Act of 1935. The Lord Chief Justice, Lord Judge expressed the view that, "the 2003 Act did not create interference with the … essential freedoms of speech and expression."
With regard to if the message was menacing, the Court was clearly impatient of the magistrates and Crown Courts views:
'if the person or persons who receive or read [a message], or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.'
In Woods, Bill Hudson, the magistrate who handed down the sentence, rationalised the approach taken by the Court by stating that "the reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.". In Chambers however the Court considered that the intention of the Act was not to create interference with the essential freedoms of speech and expression enshrined in Article 10 of the European Convention on Human Rights which the Court were required to have regard to as required by section 3 of the Human Rights Act 1998. Lord Judge, LCJ, commented:
“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation”.
However, this did not preclude Twitter (and by extension Facebook) from being a medium by which such a communication could be made. The Court stated 'Twitter', as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.”
While clearly covering a very sensitive topic, the offense of which could be easily understood by an average person, it is debateable if for the reasons outlined above, Matthew Woods’s posts were caught by the scope of the Act. Moreover the fact that he copied the contents from “Sikipedia” has not been fully analyzed in relation to Wood’s intention to cause menace or gross offence. It also has not explained what legal position will be taken by Courts in relation to re-tweets.
Another point highlighted in Woods was that his Facebook page was available to a large number of people, which raises the inevitable question of how the CPS will deal with the fact that according to the Communications Act 2003, those who are grossly offended by the message need not be the recipients. If Woods is followed to the letter Frankie Boyle would be on charges weekly for the contents of his Twitter page. The question Mr Starmer must answer is where to draw the line and if as some commentators have suggested, the authorities’ are mounting an attack on free speech, by design or accident.
In response to these concerns, the CPS have stated that “if the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest…the emerging thinking is that it might be sensible to divide and separate cases where there's a campaign of harassment, [or] cases where there's a credible and general threat, and prosecute in those sorts of cases and put in another category communications which are, as it were, merely offensive or grossly offensive”. However they have acknowledged that this “doesn't mean the second category are ring-fenced form prosecution, but it does I think enable us to think of that group in a slightly different way."
What this “different way” may include remains to be seen, but it is likely that this could include other forms of ancillary orders as set out in the Magistrates Court Sentencing Guidelines at pages 168-174, with examples including Anti Social Behaviour Orders (http://www.northants.police.uk/files/linked/WCU/Magistrate%20Sentencing%20Guidelines.pdf). It is interesting to note that the guidelines in relation to Communications Network offences already require the court to give consideration to such ancillary orders, and what new additions the CPS’s proposition of“ a different way may make to the existing position remains to be seen.
Public Electronic Communications Network (Twitter Joke Trial)
In terms of approaching things “in a different way” another avenue open for the CPS to consider is whether social media sites should be asked to improve their moderation procedures to ensure offensive content is more swiftly removed. An under analyzed area in respect of this is contained in the Paul Chambers trial.
A groundbreaking element of the Courts analysis came from their finding that the internet itself constitutes a public network as it 'is plainly a public electronic communications network provided for the public and paid for by the public through the various service providers we are all familiar with…potential recipients of the message are the public as a whole, consisting of all sections of society'. The Courts reasoning derived from an analysis of the internets network infrastructure as a series of links. These links cover networks of networks and services linking individuals, service providers, network providers, platform providers and content providers. However, if, as the Court did in Chambers these groupings of networks are considered as a single entity, then it has the potential cast a net over networks previously considered 'private' or 'bespoke'. Such examples could include networks unavailable to the public which are nevertheless able to connect with the public as well as their supporting platforms and applications e.g. Facebook and Twitter.
If these findings will apply to future cases is a matter of debate. The problematic nature of the courts finding that the internet constitutes a public communications network, ignores the fact that the definition is derived from an EU concept developed for the purposes of regulation. The European Framework for Electronic Communications is designed around the distinction between public and private networks and services; the former attracting comprehensive regulation which non-public networks are not required to conform to, such as the right and corresponding obligation to negotiate interconnection with other public network providers.
The similar term 'Public Communications Network' entails further requirements. Certain obligations are imposed to ensure the availability of the public network, such as taking necessary measures to maintain the proper and effective functioning of the network at all times and making arrangements for the event of a public disaster. Others are for the protection of consumers, including the obligation to publish quality of service information if instructed to do so by Ofcom and offering contracts with specified minimum terms to end-users. There are additional requirements with regards to data retention and lawful intercept requirements such as the relevant government authorities requiring operators of public networks to retain communications data relating to the traffic passing over its network and information about subscribers, to be made available to authorities on request. A public network provider may also be instructed to maintain the capability to intercept communications over its network at the direction of the government.
What this may mean for platforms such as Twitter and Facebook is not clear. Twitter for example already has under its Terms (which can be found at http://twitter.com/tos) at point number 8 certain “Restrictions on Content and Use of the Services” which operate as a policy of operating its site in a way that satisfies applicable laws and regulations. What such obligations may include post Chambers is still a live issue. Moreover, changes in moderation requirements placed upon service providers may affect section 4 of Twitters policy, entitled “Contents of the Service”, which contains a free speech policy, stating that it will not interfere in disputes or restrict what it describes as “controversial content”. What is clear is that the CPS will need to carefully consider how to afford the correct weight to an individual’s right to freedom of expression.
Conclusion
When it comes to regulation, law enforcement authorities have not found the lack of a codified “social media law” to be a barrier instead adopting a case by case approach. However in today's new, challenging digital environment, the existing body of legislative instruments, including the Communications Act 2003, do not provide for the degree of harmonisation required, nor the necessary efficiency to meet the demands which cases such as Wood are placing on them.
While Mr Starmer has stated that the new guidelines, which it is envisaged will be designed to address these issues, will enable the relevant authorities to use remedies other than criminal prosecution to address instances of offensive activity, he has also stated that “people have the right to be offensive, they have the right to be insulting, and that has to be protected." As such what form such guidance or changes may take, having particular regard to the requirements of the Human Rights Act is yet to be seen. In any case it will certainly give academics, lawyers and the CPS something to Tweet about.
“Tweet Revenge” –The Regulation of Social Media
Introduction
Social media offers a previously unparalleled opportunity for engagement with brands, companies and users due to the instantaneous access to significant part of the global population. However, with such opportunity also comes a serious threat of abuse and ill-conceived comment. With the advent of social media the courts have had to play a game “catch up”, often being required to use a range of ill-fitting legislative instruments in order to prevent such abuse. Due to the nature of the available regulation, set out in further detail below, the case by case approach has resulted in significant uncertainty over which standards and penalties will be applied. With the number of social media related cases only likely to increase in the coming years this article suggests that there is now a need for a consolidated legal framework, or at least significant guidance as to the application of the existing legislation, in order to bring clarity concerning where fundamental rights such as freedom of expression ends and civil and/or criminal liability begins.
Regulation
Words can cause personal embarrassment and damage to character. For corporations, who are increasingly finding themselves victims of defamatory speech, a false statement can mean loss of shareholder confidence, loss of competitive advantage, damage to goodwill and using resources that could be better employed elsewhere to implement damage limitation exercises. In response to this the courts have used an umbrella of legislation in order to achieve a just and fair result based on the facts of the case before them.
Communications Act 2003
Under section 127(1) (a), a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network.
This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins ([2006] UKHL 40), Mr Collins made a number of racist phone calls to the offices of his local MP. In considering if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so. However, the Court stressed that individual are entitled to express their views strongly and that the proper question for determining if s127 (1)(a) had been infringed was whether the language used went beyond what could be considered as tolerable in society.
While in the above circumstances the standard of what is reasonable may be considered obvious, in other cases there has been more room for doubt. For instance, John Kerlen was found guilty of sending tweets that the Court determined were both grossly offensive and menacing, for posting a picture of a Bexley councillor’s house and asking: “Which c**t lives in a house like this. Answers on a postcard to #bexleycouncil”; and another saying “It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual s**t.” Mr Kerlen was sentenced to 80 hours of unpaid labour over 12 months, incurred £620 in prosecution costs and made subject to a five-year restraining order. However, were these messages really menacing or grossly offensive and given the facts of the case would it have been more appropriate to bring a prosecution for incitement to cause criminal damage (if he was genuinely intending to encourage others to deface the councillors property) or for harassment?
In the “Twitter joke trial” Paul Chambers was also prosecuted under the Act for sending the following tweet: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!” Mr Chambers subsequently appealed to the Crown Court against his conviction. The appeal was dismissed with the judge stating that the Tweet was “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” However Robin Hood Airport had classified the threat as non-credible on the basis that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” Context clearly plays an important role, however there is no yardstick to determine what may be reasonable in a given circumstance or how the ill conceived message conveyed will be interpreted. This is an issue which did not escape the attention of the court. Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal.
On 27 July Chambers conviction was quashed. The approved judgment stated, "the appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further." Interestingly the Court took the view that English law (and prior to the 203 Act) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. The Court also noted that the 2003 Act predated the advent of Twitter and that the statutory reference to "menacing" was itself based on the wording of the previous Act of 1935. The Lord Chief Justice, Lord Judge expressed the view that, "the 2003 Act did not create interference with the … essential freedoms of speech and expression." However, while a coup for freedom of expression, the route by which the Court reached its decision, highlights the needs for a comprehensive review of the methods by which the Courts seek to regulate commentary made via online channels.
Malicious Communications Act 1988
Under s1(1) of the Malicious Communications Act 1988 it is an offence to send an electronic communication which conveys a message which is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person. A recent example of this arose after Sheffield United Striker Ched Evans was convicted of the rape of a 19 year old woman and individuals allegedly named the victim on a social media site, resulting in 13 prosecutions so far.
The above case clearly involved a very sensitive topic and the potential for distress and psychological damage to the victim was significant, as such the offense element can be reasonably understood by the average person. However with other subjects, what amounts to grossly offensive or distressing may not be so clear cut. What of comments regarding weight or appearance? Coleen Rooney, Katie Price, Stacey Solomon and Alexa Chung have all been the recipients of such negative comments on Twitter, but whether such comments in the future would lead to criminal charges is yet to be seen. It also raises the question as to at what point humour will potentially become prosecutable under the Act. Frankie Boyle, known for his dark comedy style has recently taken to his Twitter page, to write about Olympic swimmer Rebecca Adlington "I worry that Rebecca Adlington will have an unfair advantage in the swimming by possessing a dolphin's face." Will comedians too potentially face criminal charges in the future?
Contempt of Court Act 1981
If someone posts information online that is banned from publication by the UK courts they could potentially be found guilty of contempt and liable for an unlimited fine or a two-year prison sentence. The so called “super injunction” cases highlighted the shortcomings of the use of contempt as a viable policing instrument. On 8 May 2011 an account on Twitter posted alleged details of several of the injunctions that had been mentioned in the papers. Public interest was such that the record for visits to Twitter in the UK was exceeded, with one in every 200 visits being made that day to its website. On the same date, Manchester United footballer player Ryan Giggs, who had obtained an anonymised injunction in the case of CTB v News Group Newspapers [2011] EWHC 1232, was named and shamed as the subject of the injunction and details of his affair with Imogen Thomas were posted on the micro site. Giggs, requested that Twitter hand over details about account users who had revealed his identity in breach of the terms of the “super-injunction”. Hundreds of users simply responded by naming him again, causing the topic to go viral, demonstrating the laws inability to police such a vast reaching and instantaneous means of communication. No prosecutions were brought against the individuals involved and even if attempts had been made, the logistical task of doing so would present an almost impossible administrative burden on law enforcers.
Serious Crime Act 2007
The Serious Crime Act was used to effect during the riots in the UK in summer 2011. Under the Act proceedings were brought against Jordan Blackshaw and Perry Sutcliffe-Keenan. Blackshaw had created a Facebook event entitled “Smash down in Northwich Town” and Sutcliffe-Keenan had invited people to “riot” in Warrington. Blackshaw’s page specified the disturbance to be ‘behind maccies’ – thought to be McDonald’s in Northwich town centre, Cheshire – from 1pm to 4pm on August 9”. Blackshaw then added under the first comment on the page: ‘We’ll need to get this kickin off all over.’ Sutcliffe-Keenan’s page invited people to take part in ‘Warrington Riots’ in Cheshire from 7pm and 10pm on August 10. There was also a photograph of civilians clashing with police officers.
The defendants were jailed for four years each under sections 44 (Intentionally encouraging or assisting an offence) E+W+N.I.and section 46 (Encouraging or assisting offences believing one or more will be committed) of the ActE+W+N.I.. Martin McRobb, of the CPS noted: ‘The posts caused significant panic and revulsion in local communities as rumours of anticipated violence spread”.
Crime and Disorder Act 1998
Liam Stacey, was sentenced to 56 days’ imprisonment for 26 racially offensive tweets (amounting to 2.2 days per tweet) in relation to Bolton Wanderers footballer Fabrice Muamba, for racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress under section 31 (1) (c) of the Crime and Disorder Act 1998. This case serves to highlight the ad hoc nature of policing comments online, and the uncertainty as to the remedies that will be applied. For instance, why was Liam Stacy prosecuted under the Crime and Disorder Act rather than the Communications Act? In a case that was prosecuted under the Communications Act, Joshua Cryer, sent racially abusive messages on Twitter to the ex-footballer, Stan Collymore, and was sentenced to two years’ community service and ordered to pay £150 costs. The penalties under the two acts differ considerably. A person guilty of an offence falling within subsection 31 (1) (c) of the Crime and Disorder Act is be liable on summary conviction to a fine not exceeding level 4 on the standard scale, however under s5 the Communications Act, a person guilty of an offence under s127 (1) is liable under 127 (3), on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
Defamation Act 1996
Posting controversial messages online is not just a criminal issue, it can also attract civil liability, most notably under the Defamation Act 1996.
In Cairns v Modi [2012] EWHC 756 (QB), former New Zealand cricket captain Chris Cairns won a defamation claim against former Indian Premier League (IPL) chairman Lalit Modi for defamatory tweets in the first case of its kind in the UK. Mr Modi had tweeted that Mr Cairns had been removed from the IPL list of players eligible and available to play in the IPL “due to his past record of match fixing.” The Tweet was removed within 16 hours of being posted. However, the words were also repeated in a publication by Cricinfo UK, a cricket magazine. It was estimated that approximately 65 people saw the Tweet and around 1,000 people read the publication. Cairns sued Modi for defamation and Modi relied on the defence of justification; i.e. that his comments were true. Bean J rejected this argument stating that the Modi had “singularly failed to provide any reliable evidence to support such a claim”. Bean J awarded Cairns damages of £90,000 (approximately £3,750 per word tweeted).
The other most common defence to a claim of defamation made in this context (i.e. a Twitter or social media comment that would otherwise be found to be defamatory) is the defence of “fair comment”. This applies when a comment (rather than a statement of fact) is published on a matter of public interest. The key here is that the statements must be comment (rather than as in the Cairns case, where the Tweet was a statement of fact) and must be honestly held, as such it would not assist individuals posting malicious comment for personal gain or motive.
Conclusion
When it comes to regulation, law enforcement authorities have not found the lack of a codified “social media law” to be a barrier. Instead they have applied a case by case approach, utilizing a range of legislative instruments to achieve prosecutions. However in today's new, challenging digital environment, the existing body of legislative instruments does not provide for the degree of harmonisation required, nor the necessary efficiency to meet the demands which social media are placing on them. The Crown Prosecution Service has commented “cases are prosecuted under different laws. We review the evidence given to us and decide what is the most appropriate legislation to charge under.” This has created shades of grey as to what legal standards will apply under the re-adapted laws, which are often employed beyond the scope of their original purpose. Without a consolidated framework, it is difficult to determine where the line will be drawn in any given case between freedom of expression and the rights of others.
This article was originally published in E-Commerce and Policy August 2012
Social media offers a previously unparalleled opportunity for engagement with brands, companies and users due to the instantaneous access to significant part of the global population. However, with such opportunity also comes a serious threat of abuse and ill-conceived comment. With the advent of social media the courts have had to play a game “catch up”, often being required to use a range of ill-fitting legislative instruments in order to prevent such abuse. Due to the nature of the available regulation, set out in further detail below, the case by case approach has resulted in significant uncertainty over which standards and penalties will be applied. With the number of social media related cases only likely to increase in the coming years this article suggests that there is now a need for a consolidated legal framework, or at least significant guidance as to the application of the existing legislation, in order to bring clarity concerning where fundamental rights such as freedom of expression ends and civil and/or criminal liability begins.
Regulation
Words can cause personal embarrassment and damage to character. For corporations, who are increasingly finding themselves victims of defamatory speech, a false statement can mean loss of shareholder confidence, loss of competitive advantage, damage to goodwill and using resources that could be better employed elsewhere to implement damage limitation exercises. In response to this the courts have used an umbrella of legislation in order to achieve a just and fair result based on the facts of the case before them.
Communications Act 2003
Under section 127(1) (a), a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network.
This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins ([2006] UKHL 40), Mr Collins made a number of racist phone calls to the offices of his local MP. In considering if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so. However, the Court stressed that individual are entitled to express their views strongly and that the proper question for determining if s127 (1)(a) had been infringed was whether the language used went beyond what could be considered as tolerable in society.
While in the above circumstances the standard of what is reasonable may be considered obvious, in other cases there has been more room for doubt. For instance, John Kerlen was found guilty of sending tweets that the Court determined were both grossly offensive and menacing, for posting a picture of a Bexley councillor’s house and asking: “Which c**t lives in a house like this. Answers on a postcard to #bexleycouncil”; and another saying “It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual s**t.” Mr Kerlen was sentenced to 80 hours of unpaid labour over 12 months, incurred £620 in prosecution costs and made subject to a five-year restraining order. However, were these messages really menacing or grossly offensive and given the facts of the case would it have been more appropriate to bring a prosecution for incitement to cause criminal damage (if he was genuinely intending to encourage others to deface the councillors property) or for harassment?
In the “Twitter joke trial” Paul Chambers was also prosecuted under the Act for sending the following tweet: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!” Mr Chambers subsequently appealed to the Crown Court against his conviction. The appeal was dismissed with the judge stating that the Tweet was “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” However Robin Hood Airport had classified the threat as non-credible on the basis that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” Context clearly plays an important role, however there is no yardstick to determine what may be reasonable in a given circumstance or how the ill conceived message conveyed will be interpreted. This is an issue which did not escape the attention of the court. Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal.
On 27 July Chambers conviction was quashed. The approved judgment stated, "the appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further." Interestingly the Court took the view that English law (and prior to the 203 Act) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. The Court also noted that the 2003 Act predated the advent of Twitter and that the statutory reference to "menacing" was itself based on the wording of the previous Act of 1935. The Lord Chief Justice, Lord Judge expressed the view that, "the 2003 Act did not create interference with the … essential freedoms of speech and expression." However, while a coup for freedom of expression, the route by which the Court reached its decision, highlights the needs for a comprehensive review of the methods by which the Courts seek to regulate commentary made via online channels.
Malicious Communications Act 1988
Under s1(1) of the Malicious Communications Act 1988 it is an offence to send an electronic communication which conveys a message which is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person. A recent example of this arose after Sheffield United Striker Ched Evans was convicted of the rape of a 19 year old woman and individuals allegedly named the victim on a social media site, resulting in 13 prosecutions so far.
The above case clearly involved a very sensitive topic and the potential for distress and psychological damage to the victim was significant, as such the offense element can be reasonably understood by the average person. However with other subjects, what amounts to grossly offensive or distressing may not be so clear cut. What of comments regarding weight or appearance? Coleen Rooney, Katie Price, Stacey Solomon and Alexa Chung have all been the recipients of such negative comments on Twitter, but whether such comments in the future would lead to criminal charges is yet to be seen. It also raises the question as to at what point humour will potentially become prosecutable under the Act. Frankie Boyle, known for his dark comedy style has recently taken to his Twitter page, to write about Olympic swimmer Rebecca Adlington "I worry that Rebecca Adlington will have an unfair advantage in the swimming by possessing a dolphin's face." Will comedians too potentially face criminal charges in the future?
Contempt of Court Act 1981
If someone posts information online that is banned from publication by the UK courts they could potentially be found guilty of contempt and liable for an unlimited fine or a two-year prison sentence. The so called “super injunction” cases highlighted the shortcomings of the use of contempt as a viable policing instrument. On 8 May 2011 an account on Twitter posted alleged details of several of the injunctions that had been mentioned in the papers. Public interest was such that the record for visits to Twitter in the UK was exceeded, with one in every 200 visits being made that day to its website. On the same date, Manchester United footballer player Ryan Giggs, who had obtained an anonymised injunction in the case of CTB v News Group Newspapers [2011] EWHC 1232, was named and shamed as the subject of the injunction and details of his affair with Imogen Thomas were posted on the micro site. Giggs, requested that Twitter hand over details about account users who had revealed his identity in breach of the terms of the “super-injunction”. Hundreds of users simply responded by naming him again, causing the topic to go viral, demonstrating the laws inability to police such a vast reaching and instantaneous means of communication. No prosecutions were brought against the individuals involved and even if attempts had been made, the logistical task of doing so would present an almost impossible administrative burden on law enforcers.
Serious Crime Act 2007
The Serious Crime Act was used to effect during the riots in the UK in summer 2011. Under the Act proceedings were brought against Jordan Blackshaw and Perry Sutcliffe-Keenan. Blackshaw had created a Facebook event entitled “Smash down in Northwich Town” and Sutcliffe-Keenan had invited people to “riot” in Warrington. Blackshaw’s page specified the disturbance to be ‘behind maccies’ – thought to be McDonald’s in Northwich town centre, Cheshire – from 1pm to 4pm on August 9”. Blackshaw then added under the first comment on the page: ‘We’ll need to get this kickin off all over.’ Sutcliffe-Keenan’s page invited people to take part in ‘Warrington Riots’ in Cheshire from 7pm and 10pm on August 10. There was also a photograph of civilians clashing with police officers.
The defendants were jailed for four years each under sections 44 (Intentionally encouraging or assisting an offence) E+W+N.I.and section 46 (Encouraging or assisting offences believing one or more will be committed) of the ActE+W+N.I.. Martin McRobb, of the CPS noted: ‘The posts caused significant panic and revulsion in local communities as rumours of anticipated violence spread”.
Crime and Disorder Act 1998
Liam Stacey, was sentenced to 56 days’ imprisonment for 26 racially offensive tweets (amounting to 2.2 days per tweet) in relation to Bolton Wanderers footballer Fabrice Muamba, for racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress under section 31 (1) (c) of the Crime and Disorder Act 1998. This case serves to highlight the ad hoc nature of policing comments online, and the uncertainty as to the remedies that will be applied. For instance, why was Liam Stacy prosecuted under the Crime and Disorder Act rather than the Communications Act? In a case that was prosecuted under the Communications Act, Joshua Cryer, sent racially abusive messages on Twitter to the ex-footballer, Stan Collymore, and was sentenced to two years’ community service and ordered to pay £150 costs. The penalties under the two acts differ considerably. A person guilty of an offence falling within subsection 31 (1) (c) of the Crime and Disorder Act is be liable on summary conviction to a fine not exceeding level 4 on the standard scale, however under s5 the Communications Act, a person guilty of an offence under s127 (1) is liable under 127 (3), on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
Defamation Act 1996
Posting controversial messages online is not just a criminal issue, it can also attract civil liability, most notably under the Defamation Act 1996.
In Cairns v Modi [2012] EWHC 756 (QB), former New Zealand cricket captain Chris Cairns won a defamation claim against former Indian Premier League (IPL) chairman Lalit Modi for defamatory tweets in the first case of its kind in the UK. Mr Modi had tweeted that Mr Cairns had been removed from the IPL list of players eligible and available to play in the IPL “due to his past record of match fixing.” The Tweet was removed within 16 hours of being posted. However, the words were also repeated in a publication by Cricinfo UK, a cricket magazine. It was estimated that approximately 65 people saw the Tweet and around 1,000 people read the publication. Cairns sued Modi for defamation and Modi relied on the defence of justification; i.e. that his comments were true. Bean J rejected this argument stating that the Modi had “singularly failed to provide any reliable evidence to support such a claim”. Bean J awarded Cairns damages of £90,000 (approximately £3,750 per word tweeted).
The other most common defence to a claim of defamation made in this context (i.e. a Twitter or social media comment that would otherwise be found to be defamatory) is the defence of “fair comment”. This applies when a comment (rather than a statement of fact) is published on a matter of public interest. The key here is that the statements must be comment (rather than as in the Cairns case, where the Tweet was a statement of fact) and must be honestly held, as such it would not assist individuals posting malicious comment for personal gain or motive.
Conclusion
When it comes to regulation, law enforcement authorities have not found the lack of a codified “social media law” to be a barrier. Instead they have applied a case by case approach, utilizing a range of legislative instruments to achieve prosecutions. However in today's new, challenging digital environment, the existing body of legislative instruments does not provide for the degree of harmonisation required, nor the necessary efficiency to meet the demands which social media are placing on them. The Crown Prosecution Service has commented “cases are prosecuted under different laws. We review the evidence given to us and decide what is the most appropriate legislation to charge under.” This has created shades of grey as to what legal standards will apply under the re-adapted laws, which are often employed beyond the scope of their original purpose. Without a consolidated framework, it is difficult to determine where the line will be drawn in any given case between freedom of expression and the rights of others.
This article was originally published in E-Commerce and Policy August 2012
