Having recently spent six months teaching some delightful, articulate teenagers A-level law it really brought home to me just how embedded social media is in the lives of young people, and also for the not quite so young as well. The students laughed incredulously at tales of queuing to use a payphone to call home from university and writing letters to friends; for these 18 year-olds the ability to communicate is permanently at their fingertips via their phones. They tweet, they message, to a lesser extent they still post on Facebook, but the key point is that they keep in contact not just with friends but with acquaintances and others frequently throughout the day. This means that they are leaving electronic trails (both written and photographic) everywhere of what they have been doing, what they plan to do, who they were with, not to mention their thoughts and feelings as they come tumbling from brain to phone. It is so fundamentally different to the situation even five years ago, is it any wonder that the legal system is struggling to keep up?

Information released under the Freedom of Information Act, showed that in 2012, out of 4,908 allegations, there were prosecutions in 653 cases in relation to social media “crimes”; this was an eight-fold increase from figures a mere four years earlier in 2008 (source: BBC News).

The DPP issued his Guidelines on prosecuting cases involving communications sent via social media on 20 June 2013, not hugely dissimilar to the interim guidance from December 2012 which launched a consultation on the subject. The guidelines are most welcome in order to clarify prosecution policy, balancing the need to uphold the criminal law and freedom of expression. There are three areas in which the guidelines will come down clearly in favour of prosecution:

• where there is a credible threat of violence,
• a targeted campaign of harassment against an individual, and
• breaches of court orders.

The guidelines clarify, in relation to a fourth category, “grossly offensive”, indecent, obscene or false communications, that the communication must be “more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it”, creating a high evidential threshold which must be overcome before prosecuting. They also emphasise that in many cases, it is unlikely to be in the public interest to prosecute. The guidelines also focus upon whether the communications are aggravated by reference to race, religion, disability, sexual orientation or transgender identity.

In particular it was highlighted in the guidelines that context is important; something that seemed to have been forgotten in the infamous “Twitter Joke-Trial” case of Chambers v DPP [2012] EWHC 2157. The guidelines go on to list some of the public interest issues which will govern the decision to prosecute, and note that prosecution of those under 18 will rarely be in the public interest; in particular the expression of genuine remorse and swift removal of an offending communication will militate against prosecution. It will be interesting to see how these cases are prosecuted from this point, as the millions of daily social media communications continue in all their forms.

In the recent case of AG v Harkins; AG v Liddle [2013] EWHC 1455 (Admin) Mr Justice Tugendhat has been busy again, dealing with a committal application in relation to two people who used social media in order to break an injunction. Unlike the social media breaches of injunctions relating to preserving the secret identities of those in illicit relationships with celebrities, these cases had altogether more serious potential consequences, risking physical harm to the beneficiaries of the injunction, and potentially other innocent people. The cases concerned Harkins and Liddle sharing photographs purporting to be of Venables and Thompson (convicted of the murder of toddler James Bulger in the early 1990s) on social media in breach of a longstanding injunction.

From Harkins’ 140 Facebook friends the photographs which he placed on his Facebook profile were then shared over 20,000 times. Meanwhile Liddle posted similar photographs on his Twitter profile, although he removed them less than 45 minutes later. Both respondents admitted that they were aware of the injunctions and knowingly breached them and were fortunate to be given suspended sentences of 9 months. Tugendhat J then sets out a clear warning to others (at para 36), “We must however conclude by saying that for the future if there is a similar publication on the internet or through the social media then we consider that there will be little prospect of such a person – if the publication occurs after the date of this judgment – escaping from a substantial custodial sentence without there being any prospect of suspension.” Whilst this warning relates to breaching this particular injunction, designed to preserve the identities of Thompson and Venables for their own protection, it may be that the courts will be taking a firmer line with those breaching injunctions, or violating privacy in future. Certainly the sentiment in this judgment (which predates the new DPP’s Guidelines) is echoed in the DPP’s guidelines in relation to contempt of court and the breaching of court orders.

So prosecutions continue to be brought. Twitter in particular appears to be providing fertile ground for court proceedings, as people so often seem to type their thoughts without truly engaging their brains about the potential consequences of what they have written. Not only are there prosecutions for ill-advised “grossly offensive” messages, but the courts are not shy of reaching judgments in libel cases based upon Twitter postings. The recent case of Sally Bercow whose “innocent face” tweet was defamatory to Lord McAlpine is a case in point: McAlpine v Bercow [2013] EWHC 1342 (QB). Mr Justice Tugendhat in his judgment swiftly explained how Twitter works, in particular the stage direction/emoticon of Mrs Bercow’s “innocent face” comment, which was to be her undoing. Mrs Bercow’s case, that she merely asked a neutral question, was dismissed by the judge, who decided that the reasonable reader would understand the words to be insincere and ironical, and therefore her Tweet in both its natural and ordinary meaning was defamatory, as was its innuendo meaning. As she said herself in a statement issued following the handing down of the judgment, “a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation.”

Facebook has become part of the furniture in court these days. Although the wealth of articles in the popular press would suggest that it is novel, in reality the social media angle is merely a hook to hang a newspaper article on. With their lives and often even their thoughts displayed so openly and dramatically in the public domain, many people continue blissfully unaware that should they find themselves within the court system for whatever reason, that their online life is fair game and provides an easily accessible source of evidence.

In family cases Facebook is very fertile ground for evidence, being mentioned in a third of divorce petitions according to research carried out by Divorce Online in 2012. With the rise of litigants in person, this source of evidence will only increase, as it is readily available and accessible. Sadly, the sheer openness that people display on their Facebook profiles, and in comments to others, publicises what would otherwise have been a private matter; the sad case of Hayley Jones a few years ago, who was killed by her former partner after she changed her Facebook relationship status to single is unfortunately not an isolated case.

Facebook is often the first port of call when seeking evidence to refute claims, for example in employment cases where an individual’s comments can lead to dismissal. Facebook evidence crops up in everything from personal injury claims to refute claims for loss of amenity to helping the Court to unravel complex insurance frauds, as in Locke v Stuart & AXA [2011] EWHC 399 (QB); it is worth reading the comments from Mr. Andrew Edis QC (sitting as a High Court Judge) in this case about case management where there are large quantities of Facebook evidence. Disclosure of Facebook evidence is not complex to obtain, with the use of Norwich Pharmacal orders becoming more commonplace.

Matters have now advanced when seeking disclosure of the identities of users of Facebook. In June 2012 a British 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 seven Facebook “trolls” (people who anonymously post deliberately provocative messages online) who harassed and abused M. Brookes online on Facebook for many months. What was unusual about the case was that the purpose of identifying these people was to facilitate a criminal prosecution against them, rather than seeking a civil remedy. 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. An arrest was made in August 2012, but the police decided to take no further action in July 2013, so she remains without a remedy.

The courts are beginning to use social media as a procedural tool. Commonwealth precedent has now been superseded by domestic decisions particularly in relation to substituted service. For example, the widely mentioned (but unreported) case from 2009 in which Lewison J ordered service of an injunction via Twitter. This avoided the technical difficulties of identifying and locating the Twitter user Defendant in question. Since then, the judgement of Teare J in the 2012 case of AKO Capital LLP & Another v TFS Derivatives & Others (Telegraph) has clarified matters in England and Wales. 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.

Meanwhile, acknowledging the pace of change, and the 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 now do so with permission from the judge (Judiciary.gov.uk). All of these are subject to the Contempt of Court Act 1981, so care must be taken about what is reported.

It is easy to see the benefits of technology and social media when looking at creative ways to maintain contact between children and non-resident parents or other family members. In both Re W (A Child) [2011] EWCA Civ 345 and Re H (A Child) [2010] EWCA Civ 915 the Court of Appeal ordered the use of Skype (online voice and video calls over the internet) to maintain contact between children and their father, following the mother’s international relocation. This kind of indirect contact could easily be extended to include facetime or contact via social media such as Facebook or Twitter. Skype has also been used as a means of giving evidence remotely, rather in the manner of a video link. See for example, the case of Rezaeipoor v Arabhalvai [2012] EWHC 146, in which an appeal was dismissed, including a ground that the Master had erred in permitting a witness to give evidence via Skype from out of the country. It was noted that whilst the use of Skype was imperfect, the decision was acceptable, and the Master had given adequate reasons for allowing evidence to be given in this way.

These are but a few of the many examples of the use of social media in our courts. As technology develops, the courts have to adapt flexibly to accommodate new types of social media evidence, and move forwards procedurally to take advantage where appropriate of new methods of communication. This is not always a straightforward task.