Social media and the legal system in the news
Acknowledging the pace of change and a desire to have live text-based reporting from court, Lord Judge, the Lord Chief Justice, gave guidance in December 2011, enabling the media or legal commentators to send live text-based communications (primarily, but not exclusively messages on Twitter) from Court, and even the public can do so with permission from the judge (see Practice Guidance (pdf)). All of these communications are subject to the Contempt of Court Act 1981, so care must be taken about what is reported.
Contempt of court seems to be the theme in 2012, with many ill-advised postings on Twitter about legal proceedings. See for example Joey Barton in February 2012 in relation to the criminal trial of fellow footballer John Terry – the Attorney General indicated that he would not be bringing contempt of court proceedings (Guardian article).
There was also the case where a reporter’s actions resulted in the use of Twitter in Court being banned by the judge during the criminal trial of Harry Redknapp; the reporter having not only named a juror, but tweeted evidence from a voir dire!
It was in the summer of 2011 that the impact of social media began to really hit home in the criminal justice system, during and following the riots which spread around England in August 2011. On the one hand there were numerous arrests and prosecutions based upon evidence from posts and messages on Facebook and Twitter allegedly inciting others to join in rioting, violence and looting, as well as the photographic and video evidence found online and on people’s mobile devices showing the commission of offences; substantial custodial sentences were handed down to many of those who have been convicted. On the other hand various police forces gained confidence in harnessing the power of social media.
The Metropolitan Police Service have confirmed that they used intelligence garnered from social networking website Twitter, as well as messages sent via the semi-private BlackBerry Messenger service to thwart potential trouble (“BBM” the BlackBerry Messenger instant messaging application for BlackBerry devices enables messages to be easily sent to a large group signed up to it as well as to individuals).
Many police forces used social media to inform their communities of the situation locally during the disorder (eg via Twitter feeds and dedicated websites) and then to seek evidence and identify offenders after the event. For example, the Metropolitan police set up their own Flickr stream of photographs to seek the public’s help to identify those alleged to have been involved in the 2011 riots, meanwhile Greater Manchester police kept people informed of trouble, and of those arrested, charged and before the Courts via their Twitter feed @gmpolice, and their own Flickr and real-life “Shop a Looter” adverts.
Interestingly, the general public also utilised social media to mobilise their own community clean-up operations following the riots, with groups on Facebook and messages on Twitter under hashtags such as #riotwombles and #riotcleanup being deployed successfully to co-ordinate efforts.
Meanwhile the government in the aftermath of the riots mooted the controversial idea of the possibility of “turning off” texting, messaging or social networks during times of civil unrest. In particular the Prime Minister has expressed concern at the use of Twitter, Facebook and semi-private messaging services such as BBM to co-ordinate anti-social behaviour, and spread unrest. This idea of course waves a big red flag at civil liberties and freedom of speech, not to mention the actual technical feasibility of such an idea.
The Court of Appeal judgment in R v Blackshaw & Others  EWCA Crim 2312 sets out in some detail the impact that social media had in the commission of many offences during the riots, and the way that the courts handled this in sentencing and upon appeal.
In 2012, football and Twitter do not seem to be happy bedfellows, with convictions for sending unpleasant, racist tweets appearing in the news. Student Liam Stacey was sentenced to 56 days in prison for posting racially abusive comments when Bolton player Fabrice Muamba collapsed during a football match in March 2012 (Guradian article). In the same month another student Joshua Cryer was given a 2 year community order after sending ex-footballer Stan Collymore a series of racist tweets over a period of days (BBC report).
Social media as evidence
Social media, be it the micro-blogging in 140 characters of Twitter, or the social network giant that is Facebook, or the video and photo uploads of YouTube and Flickr, is now firmly embedded in our society. Is it therefore any surprise that it is being used either to facilitate the commission of crimes or to help to apprehend and secure convictions of offenders?
In fact, evidence from a wide variety of sources of social media has been used for some considerable time in legal cases ranging from the obvious criminal matters, to family cases, employment matters and personal injury cases. In the last year, however, the more traditional media (newspapers, radio and television) appear to have taken great pleasure in highlighting the presence of social media evidence, and barely a day seems to go by without a headline proclaiming the Facebook element of a case or that Twitter users are defying super-injunctions.
Evidence from people’s private lives has always been part and parcel of Court proceedings; Courts have always been able to order the disclosure of private letters, diary entries or emails if they are relevant to the issues which need to be decided. Why then is it so newsworthy or surprising for evidence from social media sources to be sought and used?
People are often rather naive in relation to social media, forgetting that the comments that they make on Facebook, or tweets to “friends”, or pictures that they upload to Flickr are available to more than just their small group of friends and can be seen by the world at large. Perhaps it is the bragging element of these interactions which makes it so newsworthy; it is rather satisfying to hear about someone who gets their comeuppance for gloating about how clever they’ve been on their Facebook page, or posting a video of their exploits on YouTube.
Even if someone keeps tight security and privacy settings on their social media movements, disclosure of the evidence generated can still be sought in legal proceedings. What used to be a conversation down the pub between friends is now carried out on the world stage of the Internet, and a trail is left behind. This trail creates a vital evidential resource.
Of course the Courts are not going to allow fishing expeditions to trawl through all sources of social media for evidence, but postings on a person’s Facebook profile, or messages typed and tweeted on Twitter may well be relevant evidence and therefore the proper subject of disclosure applications.
The courts are getting wiser to social media, and an application for disclosure, either of the contents displayed on a social media platform, or a Norwich Pharmacal order to identify the person behind particular social media communications, is far from unusual; see, eg, Applause & Firsht v Raphael  EWHC 1781 or Sheffield Wednesday Football Club & Others v Hargreaves  EWHC 2375.
Matters have now advanced when seeking disclosure of the identities of users of Facebook. In June 2012 a woman named Nicola Brookes successfully obtained a Norwich Pharmacal disclosure order against Facebook in the US to disclose all material relating to the identities of 7 Facebook “trolls” (people who anonymously post deliberately provocative messages online) who harassed and abused Ms Brookes online on Facebook for many months (Pinder Reaux article). Granted by a High Court Master (but as yet unreported) the information provided by this disclosure order will ultimately enable her to bring private prosecutions for harassment against these people, having had no success in getting the police or Facebook itself to put a stop to it.
On a procedural note, it is permissible to seek an order for substituted service using social media as an alternative means of service. The High Court allowed service of an injunction via Twitter as long ago as 2009 (Telegraph article). The judgment of Mr Justice Teare in the February 2012 case of AKO Capital LLP & Another v TFS Derivatives & Others has clarified matters further in England and Wales (Telegraph article). The judge gave permission for service of a claim form on one of the defendants to be at his last known address and also via his Facebook page. Apparently the claimant verified to the court that not only did the Facebook account belong to the defendant, but also that it was regularly accessed as he had accepted recent “friend requests” from co-workers.
This ruling follows similar decisions in various Commonwealth jurisdictions, and arguably will be the first of many such decisions in relation to substituted service. Of course the rules in relation to substituted service, Part 6 of the Civil Procedure Rules and Practice Direction 6A, make such orders an increasingly likely prospect (CPR Part 6); rule 6.15 gives the Courts sufficient flexibility to use whatever means are necessary to effect service. If social media is part of people’s lives, then it would appear to be a perfectly valid method of service, the point of which is of course to bring legal proceedings to someone’s attention. In that way it is little different to the old-fashioned method of leaving an answering machine message for someone to inform them of the existence of proceedings and how to get hold of the relevant documents.
The case of W v M  EWHC 1197 (COP) is said to be the first example of an injunction specifically preventing publication of details which could lead to the identification of a Court of Protection patient on any “social network or media including Twitter or Facebook”. Mr. Justice Baker appears to have issued this specifically worded injunction to prevent the anomaly whereby the traditional media is prevented from publishing information, only for it to surface on social media or the internet, thereby side-stepping the injunction (as in the case of the Trafigura injunction against the Guardian newspaper).
With so much of our lives displayed online, it is likely that the Courts are going to see ever-increasing quantities of social media evidence, and lawyers need to keep abreast of not only the different types of social media, but the uses to which that evidence can be put; not to mention the ways of adducing it as evidence, or methods of using it procedurally.
Amanda Millmore is a non-practising barrister and founder of CPD provider Legal Training. The material in this article is expanded upon in a 1 hour accredited CPD course “2012 Social Media as a Legal Tool”, which considers in detail examples of social media evidence and procedural uses for social media.
Follow her on Twitter @legaltraininguk.
Legal Training offers 100% online, flexible, accredited CPD training. Courses cover Family Law, Criminal Law, Property Law, Civil Law and Mental Capacity Law as well as general IT skills and Chambers’ Complaints Handling.Tweet