The first recorded use of the phrase “social media” by an English court was by the Lord Chief Justice, who was responding to an appeal by two men convicted of stirring up some of the 2011 London riots via Facebook.
Since then, we’ve seen more high-profile cases involving social media. The Bristol man jailed in 2014 for sending menacing tweets to Stella Creasy MP; the aristocrat sent to jail for his Facebook posts about anti-Brexit campaigner Gina Miller.
Last year, a huge 5.2 million “fraud and computer misuse offences” were committed, according to the Office for National Statistics (ONS). In August 2017 the Crown Prosecution Service (CPS) said it would treat online hate crime as seriously as its offline counterpart.
The barrister and blogger The Secret Barrister says: “We’re going to see an increased number of prosecutions for ‘social media offences’ and a corresponding increase in convictions. From what I see on Twitter and Facebook and in criminal cases in court there is still for many people a psychological disconnect when they interact online. The internet is perceived as an impenetrable bubble in which the usual rules of human engagement can be disregarded.”
In 2017 the left-wing blogger Jack Monroe brought a headline-grabbing libel case against the right-wing journalist Katie Hopkins after Hopkins had tweeted about Monroe vandalising war memorials in a case of mistaken identity. Monroe won the case.
Greg Callus, Monroe’s barrister, says: “Many people still don’t seem to appreciate that online abuse and trolling can have real-world consequences, in defamation, in harassment, even in criminal law. The data trail that we all leave nowadays also means that very few people are truly capable of being anonymous online.”
Although social media has become increasingly relevant to legal practice, it’s not an area of law just yet. Callus says that knowing the area of law trumps subject matter every time.
“It always helps to know an industry well, whether that’s newsrooms or merchant shipping. But it’s much easier for a specialist lawyer to learn the mores of social media, than for a lawyer who happens to know social media to dabble in a specialism.
“I spend plenty of time on Twitter, and my practice covers all the torts in ‘media law’, but if a Twitter user was being prosecuted in a criminal court under section 127 of the Communications Act 2003, I’d tell them they’re better off going to a criminal barrister who’s never been on Twitter than coming to me. A good lawyer will get their heads around unfamiliar facts quickly — true specialism in law takes much, much longer.”
Kevin Poulter, a solicitor who advertises himself as a “social media specialist”, agrees that social media can’t be considered a practice area.
“Not yet, at least,” Poulter says. “I see myself as an employment lawyer by trade — social media is the extra bit.”
However, social media can be a significant issue in many cases. An employee can spread commercially sensitive information all over the internet or build up a huge database of contacts on LinkedIn before moving on, posing a challenge to the enforcement of traditional restrictive covenants.
Poulter continues: “It’s essential for lawyers to have some knowledge of social media, even if it’s not directly related to their main specialisation.”
The Secret Barrister says that getting to grips with technical details can pay off in the criminal field: “Facebook screenshots are often considered sufficient [in court] to prove online activity… Lawyers who are ahead of the curve on technical computer matters will be able to mine a rich seam of work in the field of online communication offences.”
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