Trial by Social Media

13 November 2017

You're in court. A football sized crowd is screaming obscenities at you from the public gallery. Some shout loudly that they want to do unmentionable things to you. The judge, jury and defence lawyer are nowhere to be seen. Your friendly smile and self-deprecating humour have long gone, replaced by fear and the beginnings of tears. Like an endangered species, you wildly look around for the exit. There isn't one. You're hunted and hated, in equal measure.

Welcome to the world of trial by social media.

This, often devastating, trend is perhaps one reason why the Attorney General, Jeremy Wright, QC, has recently urged the justice system to "catch up with the modern world". In social media land, inhibitions are lost, opinions freely and brutally given and hard fought for reputations can be wrecked by a 'share' or 'angry face'.

Just to be really clear though: for the voiceless and unheard many, who have suffered deeply and endured appalling sexual harassment and abuse; social media can be a way of being heard at long last. It takes and continues to take, huge courage to #metoo and then detail the very abuse that destroyed precious confidence and career prospects; robbing the sufferer of hope and happiness. The powerful; be they film directors, politicians or TV hosts; (sadly this is not a finite list) knew and know exactly what they did or were doing. So, I totally understand why many feel that their tweets will be taken more seriously than their talk could be. I too am disgusted by those who trivialise and taunt abuse victims. Abuse, of any kind, is the powerful's problem, not that of the powerless.

I am also worried, though, about those I work alongside, and often represent, who can also find themselves at the centre of a different kind of social media feeding frenzy. It could be the business person, whose divorce settlement becomes the focus of a frantic and vicious Facebook debate. Or the actor or musician facing a drugs charge. In both cases, any supposed misdemeanours are detailed, documented and dissected on Twitter or Instagram; and after a few hundred, then thousand retweets, there's your verdict. 'Guilty, m'lud'. The 'official' legals, by the way, may not have even begun. It's in this sphere, that things get tricky. 

The Attorney General's concern, shared by many of us, is that in the UK, the 1981 Contempt of Court Act does not, "protect against trials by social media", because most people aren't lawyers, and are just not familiar with the rules surrounding current court cases. So, anyone can allege that you or I are as 'guilty as sin', even before we've stepped inside a courtroom. In 'old media speak', you are in 'contempt', if your reporting and/or news coverage prejudices or influences a jury in any way. News organisations can be heavily fined if they break this code, and cases thrown out of court, at great expense to the tax payer, if the judge feels a jury has been affected by inappropriate reporting and/or comment.

Bear with me, as I briefly unpack one other legal bit of luggage. In the UK, we also have the reformed and revamped 2013 Defamation Act. In short, it aims to protect our reputations. Freedom of speech, of course is paramount. But, if false claims are made, and we have worked our socks off building a credible brand or career for years, and we're rubbished unfairly, this can have an impact. Not only on our ability to earn, but on our mental health as well as on the safety and security of our friends and family. The good news is, we have a right to reply, and can choose to take the accuser to court if one is brave enough to do so.

In the US, however, the laws are different. Scandal, claim and counter claim have to be more extreme, for someone, worried about their reputation, to win damages. Because of the First Amendment, a freedom of speech defence carries a great deal of clout.

The tragic Meredith Kercher case flags up the difference in approach. You may remember that she was the 21 year old student, who was studying in Italy when she was murdered in Perugia in 2007. She had shared a room with Amanda Knox, who, in 2013, wrote a book detailing her account of events. You could buy it online, and virtually everywhere BUT the UK, because of a subsequent retrial, the publishers here were worried they'd get into difficulty because of the UK's libel laws.

Social media knows no boundaries. You'll find the cyber-libeller potentially on every phone and on every discussion focused app, virtually, anywhere in the world. It does not matter whether you're uploading an opinion in Uttoxeter or Utah; subscribe to the feed, and you'll be fed whatever rage, bile or untruth the source feels fits the alleged crime.

I for one hope the Attorney General, who's gathering his evidence before a pow wow next month, feels that the social media giants have moved a long way from their start up friendly hook up days. These organisations are now publishers; whether they like it or not, and, believe me, they Don't. Like. It.

Of course, you and I ought and should be able to 'have our say' online. But, if we overstep the mark, perhaps more and more of us will face the legal consequences of our actions. However, is it not also fair, that the Facebook and Instagram Twitterati, take their share of the cyber-libel load too? I think so.

This article was first published in The Huffington Post on 13th November 2017. Click here to read the original article. 

About the Author

Jenny Afia

Partner

Jenny helps the world’s most successful people have more privacy and protect their reputations. Her clients are mainly talented individuals, particularly from the entertainment, technology and financial sectors.

646 934 6219