Ignorance is no defence on Twitter and Facebook, warn legal experts

Earlier today, District Judge Andrew Shaw ordered nine people to pay footballer, Ched Evan's, rape victim £624 after they admitted disclosing her identity on Twitter and Facebook.

They were charged with publishing material likely to lead members of the public to identify the complainant in a rape case (an offence under the Sexual Offences (Amendments) Act 1992.

These days, whether it’s on a social media website or in relation to an online article, we all expect to have our say and post our own content.

The legal position of an individual who posts content online (whether on Facebook, Twitter, on comment sections of online news pages) is clear.

He or she is responsible for that content. Today's case is notable because the defendants were not aware that naming the lady was a criminal offence. This was irrelevant: ignorance was not a defence.

When we post material online, we act as publishers and our publications are subject to the same laws as those of professional publishers, such as newspapers.

We are likely to see a proliferation of these sorts of cases, with the Attorney General and the Crown Prosecution Service taking action against individuals, teaching them the basics of publishing law.

The message we are hearing from the courts is that the public cannot treat Twitter and Facebook as they would a casual chat in the pub.

As the Lord Chief Justice recently said in the Modi libel case (Modi was ordered to pay damages to cricketer, Chris Cairns, for wrongly accusing him of match fixing), as a consequence of modern technology and communication systems, stories have the capacity to "go viral" more widely and more quickly than ever before.

The scale of the problem is "immeasurably enhanced" by social networking sites.

A pattern of cases has started to emerge over the last 12 months. This follows the report of the Parliamentary Joint Committee on Privacy and Injunctions' Report published in March 2012, following the naming of Ryan Giggs on Twitter.

In its report, the Committee called for the Attorney General to be more willing to exercise his power as Guardian of the Public Interest to bring actions for civil contempt of court in respect of breaches of injunctions online.

It stated the threshold for him intervening should be lower with action providing a strong deterrent against future breaches. In addition, the next few months could see search engines being pressured to take practical steps to limit the potential for breach of court orders.

The report also states that Google and other search engines should be taking steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology.

Over the last year, we have seen increasing use of the Communications Act 2003 which makes it an offence to send "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character".

While Paul Chambers, who was initially found guilty of sending a tweet, recently won his high court challenge against his conviction under the Communications Act 2003, the Act has been relied on successfully against individuals. For example, in 2012, individuals who tweeted racially motivated comments about Stan Collymore were successfully prosecuted.

Earlier this year, an individual was also prosecuted for creating a webpage which glorified an alleged murderer. We have also seen use of the Public Order Act 1986 and the Protection from Harassment Act 1997.

As the number of these cases proliferate, we may start to see a change in how these social media are used, with people being forced to recognise the responsibilities that attach to publishing their thoughts online.

Niri Shan and Lorna Caddy are media lawyers at the law firm Taylor Wessing