Twitter and the law: What you can really tweet

Twitter used to be the place where you could say anything you wanted without fearing for the consequences… But not any more. A few high-profile cases have proven that you have to be careful what you say on the social network.

 

In fairness, the Human Rights Act 1998 means that you can say pretty much whatever you want – you only need to be concerned when a crime is involved, or you’re saying something that could damage a person or company’s reputation.

 

 

When it comes to crime, proceed with caution. You can tweet anything you want about it until a person(s) is arrested, or police issue a warrant for their arrest (‘when proceedings become active’). From thereon you can’t tweet anything which might unfairly prejudice a member of the jury in the case. If you do, you’ll be in contempt of court. There are very few exceptions – if you tweet something which the authorities decide could prejudice a jury, you’ll have to prove that you did everything you could to check that criminal proceedings were not active when you posted your tweet.

 

The same goes for cases covered by injunctions (or, if you are somehow party to them, super-injunctions): report on a case or story protected by an injunction, and you will also be in contempt of court.

 

 

Defamation is probably the easiest way to get yourself in trouble on twitter. All you have to do is make a statement which could harm someone’s reputation with no evidence.

 

The crime for written-form defamation is libel, and there’s a precedent to pursue even those retweet defamatory statements. If you can’t prove it, don’t touch it.

 

Lord McAlpine was libelled, firstly, by BBC Newsnight who had suggested that he was a paedophile. In this case the libel was implied, with the BBC judging that it was safe to broadcast because Lord McAlpine was one of many who fell under the heading of “a leading Tory politician of the Thatcher era” given by a victim of child abuse.

 

 

However, the name was easily guessed by many thousands, leading to McAlpine’s name to trend on Twitter. Political commentator, and wife of House of Commons speaker, Sally Bercow tweeted: “Why is Lord McAlpine trending? *Innocent face*”.

 

This was defamatory as the “*innocent face*” part of the tweet was a sarcastic statement that implied she knew exactly why he was trending (the reason for him trending being that he was being accused of being a paedophile), thus she was guilty of libel by publishing a tweet that was a) untrue; and b) exposed Lord McAlpine to hatred, ridicule and contempt (as specified in the Defamation Act 1996). And, as a consequence, she was successfully sued by McAlpine.

 

There are more defences to defamation, making it much less clear cut than contempt. One such defence is, strangely enough, that the point was truthful. Easy enough, but you’ll have to prove it – just as they’ll have to prove that you harmed their reputation.

 

You could argue it was ‘fair comment’ on a case in the public interest (the Nigella case somehow seemed to have slid in to that category). If you hear an MP in the House of Commons saying something a bit dubious, tweet away – MPs are protected by absolute privilege, which means that defamation law does not apply to them in the chamber, so you are also free to report it.