April 17th, 2013
Welcome to Pitmans’ Spring Technology Update
As the mercury rises and Spring enters stage left, our team has put together a rich variety of comment to welcome in the new season. As ever, let us know any feedback or if there are any particularly thorny issues which you’d like us to cover in our next edition.
Philip James, Partner
Google RIP: What Inactive Account Manager means for your will
Google Inactive Account Manager is a new feature which allows account holders to donate their digital assets to a nominated beneficiary, with implications for anyone writing their will. Read more
Research and Development: Collaborate with Care…
If you are considering collaborating with a competitor to develop a new technology, product or process, it is vital to ensure that any agreement you put in place in relation to your collaborative efforts complies with competition law, which is (in general terms) hostile to agreements between competitors. Read more
ReDigi – The Digital Second-Hand Shop
A US court has ruled that ReDigi’s sale of “second-hand” digital music online infringes Capitol Records’ copyright. Court grants summary judgment ruling that digital music cannot be resold. Is the distinction between the right to resell physical and digital products justified? Is this the end of Saturday Morning Swap Shop’s online comeback? Read more
Seller Beware – Liability for Pre-Contract Promises
Apart from establishing that Lulu the dog could get a degree, one of the key lessons to be learned from the case of BSkyB –v- EDS was the liability that could flow from over enthusiastic (a.k.a. fraudulent) sales pitches in the pre-contract phase of an IT project. Read more
Ability of a sub-licence to survive termination of its head license
A recent decision of Mr Justice Mann in VLM Holdings Limited v Ravensworth Digital Services Limited  EWHC 228 (Ch) held it is possible that termination of a head licence on insolvency of the licensor does not necessarily mean a sub-licence becomes ineffective. Read more
Considering consent and data collection in apps
IP & IT analysis: How far will the adoption of the EC’s Opinion (02/2013) on apps held on smart devices, which cites lack of transparency and free and informed consent, go in alleviating users’ and regulators’ concerns? Read more
Information Security and Reputation Management – ‘It’s a question of survival, not compliance’
On 7 February 2013, Pitmans hosted their second Annual Cyber Conference following the success of 2012′s event. This year’s conference focused on reputation management, cyber risk management and information security. Delegates were invited to interact with two expert cyber security panels to generate debates and identify the true issues that businesses and individuals are facing in todays digital world. Read more
Upcoming Technology Events
16 May 2013 – London
Westminster eForum – Cyber security in the UK and Europe: critical infrastructure, collaboration and skills
Following the launch of the EU’s ‘Cybersecurity Strategy’ and as the UK Government continues to spearhead ongoing initiatives to address both cyber security and protecting children online, delegates will examine the policy priorities as well as the development of innovation and skills for webspace that is secure and safe for UK citizens, business and government. For further information click here.
December 19th, 2012
Welcome to Pitmans’ December Technology Update
Our team has put together a rich medley of festive treats for your digital stocking including: incisive comment on the perils of social media demonstrated no better than the recent slurs made against Lord McAlpine, the do’s and don’ts of software licensing (from a litigator’s perspective), and the latest on the opportunities presented by Patent Box.
Philip James, Partner
Autonomy and Hewlett-Packard: the risks of technology M&A
Just over a year after completing the takeover of Autonomy, Hewlett Packard has gone public with claims that it may have been duped into paying too much and that the value of its investment was being written down. Is this about issues specific to HP and Autonomy, or does it tell us something about the risk inherent in mergers and acquisitions, and in the technology industry particularly? Read more
Getting your software licence right first time
Businesses entering into licences for specialist software should not underestimate the time and effort required to ensure that the licence documentation accurately reflects the commercial agreement: to do otherwise risks costly litigation and the threat of mission-critical software being withdrawn. Read more
Is half a loaf better than none?
Google has come under increasing pressure from both sides of the Atlantic to offer robust proposals to address what is seen by many as potential abuse of its market dominance. However, with only meager proposals being put forward by Google, the European Commission must determine whether the proposals should be accepted to reach a settlement rather than face a protracted legal battle. Read more
Innovative Intellectual Property Strategy: The Patent Box
Patents are commonly used as commercial instruments which give companies the edge over their competitors and encourage investment opportunities. Thanks to the introduction of the Patent Box in August this year, patents now have the added benefit of tax benefits. But how can your company benefit from this? Read more
Lord McAlpine and the Myth of a Luddite Legal System
On 2 November 2012, the BBC broadcast an edition of Newsnight which included allegations (subsequently established to be incorrect) by a former care home resident that during the 1980′s he had been abused by a prominent Conservative politician. The BBC did not name anyone within the story but subsequently a significant number of people speculated about those involved. Read more
WEEE wish you a Merry Christmas
Whether it is the latest phone, computer, tablet or kitchen device that you are after, electrical goods are sure to make an appearance on all our Christmas lists but what materials are used in them and are they legal? Read more
Upcoming Technology Events
7 February 2013 – London
Pitmans Annual Cyber Conference
This year’s event will focus on Reputation Management & Information Security. We are delighted to announce that Professor Sadie Creese and John Bassett OBE will be making opening and closing addresses. Register today
What to watch out for in 2013:
- the increased prevalence of crowdsourcing platforms
- the introduction of the CAP Code on Online Behavioural Advertising (OBA Code) which comes into force on 4 February 2013 (the rules do not guarantee compliance with the law)
- the outcome of the OFT’s consultation into Personalised Pricing which closes on 4 January 2013 (where prices are determined by a user’s profile)
- the success of the Cyber Incident Response Scheme (CIRS) having been launched by the Communications-Electronics Security Group (CESG, part of GCHQ) and the Centre for the Protection of National Infrastructure (CNII). CIRS is an initiative which forms part of the Government’s UK Cyber Security Strategy. If you want to know more, come along to Pitmans Annual Cyber Conference.
Finally, as the winter solstice approaches and we seek to stare into The Sky At Night to see what the future holds, we pay tribute to the life of astronomer, Sir Patrick Moore. Whilst undoubtedly controversial, Sir Patrick is said to have responded to criticism of his right-wing beliefs: “I may be accused of being a dinosaur, but I would remind you that dinosaurs ruled the Earth for a very long time.” Take from that what you will; regardless, we encourage you to look into the sky over the holiday season to see if you can spot a sleigh passing a new dinosaur constellation, following the broadcaster’s departure.
December 19th, 2012
Where we are now
We are living in a world where organisations are under constant attack from ever evolving cyber threats. Institutions around the world are struggling to operate securely in the cyber environment and are vulnerable to reputational, financial and competitive damage. According to a recent Cisco Security Intelligence Operations report , this is partly a result of the fundamental shift from mass spam attacks to more targeted and profitable attacks on organisations. These malicious attacks have quadrupled over the past year and they cost institutions globally US$1.29 billion in the last twelve months. Given the tough economic climate experienced over the last four years, many organisations have suffered budget cuts, and in many cases, security programs and their funding have diminished. Cyber criminals do not target organisations in specific sectors but target all sectors. The UK government, for example, now receives over 20,000 malicious attacks every month, according to George Osborne.
As organizations become increasingly reliant upon mobile devices, social networks and increased use of remote, outsourced, cloud based services, there is a growing concern that security progress will fall behind technological advance, leaving firms relatively vulnerable to cyber crime. Research shows that less than 40% of firms have security measures in place to protect mobile devices, the cloud and social media. Even less carry out any sort of robust, technical and operational due diligence checks upon service providers to verify security, both prior to and during engagement.
Other worries include cyber criminals finding new ways to bypass the virtual defences of organisations without a trace, to introduce malware within legitimate web content management software and to use increasingly complex ‘spearphishing’ email attacks. Recent commentators have also highlighted that individuals within organizations are likely to be targeted with greater frequency and influenced by monetary and blackmail incentives to assist in disclosure and access to sensitive information.
Why does this matter to your organisation?
The Pitmans Annual Cyber Conference will contain two keynote speeches and two panels about how to manage and prepare for breach incidents and thereby limit any resulting cost, liability and damage to your brand and reputation (and potentially share price). The conference is designed to help your organisation understand the threats and take advantage of achievable, commercial, preventative measures. The session will also set out ways in which relevant stakeholders can build a credible business case for investing sufficient resources in preparing against such threats. Carefully selected panelists will help you gain an insight into potential future threats to your institution’s security infrastructure and will advise of practical, cost effective, steps to reduce your attack surface and reduce risk exponentially. As partners, directors, board members and management, responsibility falls on your shoulders to understand these risks and to clarify the roles and responsibilities of those within organisation. Act now. This is not a dress rehearsal.
To learn more and register, attend Pitmans’ Annual Cyber Conference.
December 11th, 2012
On 2 November 2012, the BBC broadcast an edition of Newsnight which included allegations (subsequently established to be incorrect) by a former care home resident that during the 1980’s he had been abused by a prominent Conservative politician. The BBC did not name anyone within the story but subsequently a significant number of people, speculating about the politician’s identity on Twitter, linked Lord McAlpine to the Newsnight report.
Both the BBC and ITV (who on 8 November 2012 were embroiled in a separate incident where a list of alleged paedophiles was briefly shown onscreen while being handed to Prime Minister David Cameron by his interviewer, Philip Schofield), have settled threatened claims by Lord McAlpine for their part in the story. In each case, substantial damages (reportedly of £185,000 and £125,000 respectively) have been paid by way of compensation. Lord McAlpine has now seemingly turned his attention on the very substantial numbers of individuals (reckoned by some to be in the thousands) who used Twitter to link his name to the original story, thereby defaming him.
The story demonstrates the remarkable extent to which, even after several high profile cases, individuals appear to believe that Twitter and other Social Media forums are somehow “outside the law” and not subject to the same rules as more mainstream publication. There seem to be several reasons for this apparent sense of immunity to the laws of defamation, stemming from the nature of the “new” technology in question, but whatever the basis for those beliefs they are entirely wrong.
Posters who are using a pseudonym do appear to be emboldened in the statements they make online, believing that it will not be possible to discover their true identity. While potentially costly and time-consuming, it is far from impossible to do so. Orders can be obtained, if necessary at quite short notice, to require the operators of sites such as Twitter, Facebook or Hotmail (other social media are also available) to give up information about their users, where it seems that unlawful activity has taken place. On some occasions this will yield the true name and e-mail address of the perpetrator. Where it does not, it may nevertheless be possible to obtain information about the IP address of the user’s computer, from which the physical location of that machine (and therefore of the user) can also often be determined.
Users also appear to be led astray by the fact that some of them are based in jurisdictions (such as the United States) where free speech is afforded stronger constitutional protection than is the case in this jurisdiction. The multi-national nature of social media means that even those in more restrictive jurisdictions see connections of theirs able to make statements on a wide range of topics, seemingly with impunity, and seek to emulate them. As far as internet defamation is concerned, however, publication of the defamatory statement takes place where the offending article is read, meaning that a defamatory statement published online by a user based in Calcutta about a victim based in Washington DC may nevertheless be actionable in England.
Finally, and often overlooked, there is the fact that the traditional media in this country have, over the past eighteen months or so, had a vested interest in inculcating a belief in the immunity of online publication. During the press’s determined assault on super-injunctions and other anonymised restrictions on publication during 2011, a semblance of strategy seemed to be emerging. Where a celebrity was known to have obtained such an order (and of course the press were singularly well placed to know about that by virtue of the fact that they were served with the orders), their name would rapidly and anonymously be broadcast on the internet. Internet users, a large number of whom are vociferous proponents of free speech, could be relied upon to disseminate the information widely. If a politician or two could be persuaded to name the individual, under the cloak of parliamentary privilege, so much the better. The press would then apply to Court for the injunction to be discharged on the basis that the information was already out in the public domain.
It is difficult to know whether the press took a proactive part in this apparent strategy, or whether they simply were content to make use of a general popular objection to anonymised orders for their own ends. Either way it was certainly the case that a significant number of column inches were devoted to the portrayal of the internet as a haven of free speech, in which individuals could express themselves without fear of the consequences. Some of those who bought into that fiction are now those who are likely to find themselves on the receiving end of damages claims for defamation.
It is true that the law can be slow to keep up with developments, whether in technology or otherwise. The apparent inability of parliament to legislate in relation to privacy is causing on-going uncertainty for litigants on both sides, and the latest Defamation Bill is taking a remarkable amount of time to pass into law. Nevertheless, for publications that are clearly defamatory, it is important to bear in mind that the law makes no distinction between traditional media and the new/social media of the internet. If Lord McAlpine makes good on his threats and pursues even some of those who felt free to defame him so thoughtlessly, perhaps this is something that users on the internet will finally start to take into account.
November 29th, 2012
Today (29 November 2012) marks the publication of Lord Leveson’s report into the culture, practices and ethics of the press. The report is 2,000 pages long – this initial comment is based on the executive summary and the speech made by Lord Leveson on the report’s publication. It is clear that there will be considerable ground for further discussion in the days and weeks ahead.
Prior to the publication of the report there was considerable consternation being expressed within the press at the concept of statutory regulation. Lord Leveson is at some pains in his report to stress that while his proposals for a new framework of regulation does entail some statutory under-pinning, it does not represent state regulation of the press. This is unlikely to be a distinction which satisfies the concerns of the newspapers who will be affected, nor indeed does it appear to have eliminated doubts within government about the appropriate way to proceed.
What remains unclear is precisely why this part of the media considers itself to be entitled to continue to self-regulate (and Lord Leveson’s detailed report makes very clear that on a significant number of occasions this has actually meant to fail to self-regulate) in light of all that has happened. The first sentence of Lord Leveson’s speech, echoed in the introduction to the executive summary of his report, recorded that this was the seventh occasion in less than seventy years in which a government organised inquiry has reported following failures by the press. On each previous occasion, the answer proposed by the press and accepted by government has been for there to be an improved system of self-regulation. The catalogue of further failings, the numerous examples of poor ethical conduct and practices, that the Leveson Inquiry has identified, make it clear that this is a solution that has not worked.
This is so, even though large parts of the press are not guilty of any such failings, and even though the vast majority of journalism is undertaken in the public interest, and with the objectives (as Lord Leveson himself put it) of “informing, educating and entertaining”. He acknowledged in his speech that in doing so, the press should be free to be “irreverent, unruly and opinionated”. However, as he also recognised, with the great power that is afforded to the press in light of the public interest that they serve, there is an accompanying responsibility to serve that interest. Failures to do so had, he said, “wreaked havoc in the lives of innocent people”.
It is these failings that have led to the current position and to the Inquiry’s recommendations, and the consequences of that will be for the whole industry to grapple with. Lord Leveson pointed out that he does not know of any organised profession, industry or trade where serious failings of a few would be overlooked because of the good works done by the many. Indeed, he makes the critical point that if such failings took place in any other profession or industry, and were not properly held to account, the press could be expected to subject such failings to the very highest level of scrutiny. In a pithy summary, he said that the free press holds power to account, but with “a few honourable exceptions” the press had singularly failed to do so in relation to its own powers.
So much for the catalogue of problems that Lord Leveson has identified. What, then, is envisaged by the Report’s recommendations? Although the press will undoubtedly try to paint this as a dark day for journalistic freedom and independence, a significant degree of self-regulation would actually remain, even if the recommendations were implemented in full. What is recommended is that a regulatory body and code of conduct should be established by the press, albeit crucially (in light of the discredited Press Complaints Commission) with a membership drawn from outside either of the industry or of government. That wholly independent regulatory body would not be a creature of statute or more importantly of parliament. The statutory under-pinning would be confined to three critical areas:
(1) the imposition of a statutory duty on the government to secure and safeguard the freedom of the press;
(2) the recognition of the independent regulatory body providing the public with a mechanism to reassure them that the body would at all times be truly independent; and
(3) through that recognition, securing legal status for an arbitration procedure to be operated by the new body.
That would have valuable advantages in relation to costs consequences for a failure to participate in the low cost and streamlined dispute resolution process, which would have advantages both for individuals fearful of being outgunned by well-resourced media opponents in the Courts, and for newspapers wishing to avoid the risk of exposure to the (somewhat apocryphal) high level of claimant’s court costs.
These are modest objectives, and certainly go no further than the existing statutory basis for regulation of other parts of British society which one might reasonably regard as being important to keep independent. Lawyers are subject to regulation which derives its statutory under-pinning from the Legal Services Act and the body created by that statute, the Legal Services Commission. No-one sensibly suggests that this precludes lawyers from maintaining their independence in litigation involving the government. Rather closer to the territory of the press, television media has been subject to statutory regulation since its inception, and it is rarely suggested that this regulatory regime precludes that part of the media from pursuing free and impartial investigative journalism. Indeed, on several noteworthy occasions, the print media have been quick to suggest that the regulation of television does not go far enough.
In those circumstances, the press’s continued opposition to any statutory basis for regulation starts to look much less like a principled objection based on the preservation of fundamental freedoms, and much more like the desire to retain the competitive advantage that a self-authored and self-imposed code of conduct (with all of the flexibility and freedom from consequence that that entails) has to date afforded them. Lord Leveson plainly regards it as unacceptable that the press should be entitled to continue to “mark their own homework”. There will therefore no doubt be a great many who were disappointed this afternoon to see the Prime Minister express his instinctive resistance to any form of legislative consequence to the Leveson Report’s conclusions. Similarly, there will be those who are relieved that the principle of no statutory regulation is not going to be conceded without a fight.
What is clear is that the Report marks the start of what is likely to be a prolonged and difficult debate, and one which all who have an interest in the ways in which press behaviour is regulated should follow with great interest. We will be providing further comment on developments in this field as they emerge, and in the meantime are always ready to assist individual clients who wish to understand the implications of these changes for themselves or their businesses, with any questions they may have.
Will Richmond-Coggan is a director and solicitor-advocate at Pitmans LLP in the Dispute Resolution team, specialising in media and reputation disputes, including those involving online and social media elements.
November 21st, 2012
“Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed— would still have committed, even if he had never set pen to paper— the essential crime that contained all others in itself. Thoughtcrime, they called it.” – George Orwell, 1984
Last week, an employee of the Trafford Housing Trust, who had been demoted and had his salary cut by 40% for a posting that he made on his Facebook page, was successful in his High Court claim for breach of contract against his employer.
Adrian Smith expressed the view, on a page on Facebook which was not visible to the general public but critically was visible to several of his colleagues who were connected to him on the site, that gay marriages in church would be “an equality too far”. When questioned by one of these colleagues, via a comment on Facebook, what he meant by this, he explained that he had no objection to the State giving civil marriage to gay couples, but that in his opinion “the state shouldn’t impose its rules on places of faith and conscience”.
The trust took the view that in expressing this opinion, Mr Smith infringed the code of conduct which formed part of his employment contract, by expressing views on religious or political matters which might be upsetting to co-workers. Mr Justice Briggs in the High Court made clear in no uncertain terms that the Trust had misapplied its policy and thereby committed a “serious and repudiatory” breach of its contract. The Judge was equally clear that Mr Smith had done nothing wrong.
It is tempting to view this case on its specific facts, as a case about the misunderstanding of an employer’s social media policy, and the importance of disciplinary responses which are proportionate to the breach that occurs. Even in this narrow respect the case carries an important object lesson for any employer looking to apply such policies. The Trust no doubt believed that they were acting to prevent discrimination. But the consequences for them have been severe: even if the damages they ended up paying have been very low, the costs they will have incurred in defending Mr Smith’s claim are likely not to have been. It also seems likely that if Mr Smith had pursued his complaint in the Employment Tribunal, his damages could have been significantly higher.
But the case is of equal interest when viewed in its wider context. At the moment social media issues are enjoying a particular prominence in the press and in the public consciousness. A debate is going on about appropriate online behaviour, informed in part by the Director of Public Prosecution’s consultation on the boundaries of when conduct on Twitter and elsewhere ought to be prosecuted. At Pitmans, we have seen a notable rise in the number of enquiries and instructions we are receiving in relation to sometimes quite serious cases of defamation or harassment involving the internet.
But caution is required. There has been an erroneous tendency for social media users not to regard postings made on blogs or message boards as subject to the same constraints as more mainstream publications. Equally, there is now a danger that employers, rightly concerned not to be seen to be promoting or condoning genuinely harmful or discriminatory conduct, may err too far the other way. In a statement made after his success in Court, Mr Smith said that “[s]omething has poisoned the atmosphere in Britain, where an honest man like me can be punished for making perfectly polite remarks about the importance of marriage.”
Employers, like the public at large, need to be careful. In seeking to prohibit the most obvious forms of discrimination they must not subscribe to more subtle and insidious prohibitions on the fundamental rights that everyone has, to hold opinions and to express them honestly as part of a wider social dialogue. In an environment where the legal boundaries of expression are still being evolved, the consequences of inadvertently over-stepping the mark can be serious, time-consuming, and costly.
Will Richmond-Coggan is a director and solicitor-advocate in the Dispute Resolution team. He works closely with colleagues in the Employment and Data Privacy teams in connection with a range of online disputes involving social media, defamation and harassment.
November 2nd, 2012
Often in the past GPs have had to deal with flirtations or harassment by various means but as the Daily Telegraph reports today patients have used Facebook, Twitter or text messages to pursue such flirting or harassment putting GPs in a very invidious position. (See full article here).
“The GP should contact the MDU and/or a lawyer for assistance in dealing with such matters at an early stage.
The GP should report flirtations or harassment to his manager or the senior partner at the practice for fear of being falsely accused of carrying on a relationship with the patient.
Remedies against the patient would include instructing a solicitor to write to the patient requiring them to cease what they were doing and to undertake not to continue what they had been doing. If that does not work then an injunction could be obtained from the courts under the Protection from Harassment Act 1997. This deals with a “course of conduct which amounts to harassment of another”, the course of conduct must involve conduct on at least two occasions and harassment is defined as causing a person alarm or distress.
As I mentioned yesterday in my article dealing with the implications of very close monitoring of Twitter and Facebook for comments on a company’s brand, if the GP’s partnership is aware of a patient harassing an employee in the course of their employment on the grounds of a protected characteristic such as sex and the employer does nothing to stop that, then the employer will be liable for this under the third party harassment provisions of the Equality Act. As I mentioned, the government is consulting on the abolition of those third party harassment provisions but GP partnerships should be wary of this.
The other matter which the surgery should be aware of is that if the GP is an employee and he discloses information which shows criminal offences, a breach of any legal obligation, danger to the health and safety of any individual or the deliberate concealing of information about any of the above these are known as protected disclosures. If the employee is subjected to any detriment by the employer on the ground that they have made a “protected disclosure” then they will be able to pursue a whistle blowing complaint against the employer within 3 months of the detriment. Detriments might include a suspension for an investigation if, for example, the patient says it was the Doctor who encouraged a relationship unless there is reasonable justification for that as suspension is such a serious act; it is not a neutral act.
Salaried partners are still able to pursue whistle blowing claims.
Currently, an equity partner in a GP surgery would not be able to do so because of a Court of Appeal decision but this is being appealed to the Supreme Court where this may well be reversed.
October 31st, 2012
Growing numbers of global organizations are building NASA-style mission control rooms with wall-mounted screens and sophisticated analytical software, monitoring and reacting to the flood of social comments on Twitter, Facebook and elsewhere writes Ryan Holmes in “Why Brands are Building NASA-style Mission Control Rooms For Social Media”. (see full article here.)
“Monitoring of this nature is also essential for finding and if possible shutting down negative impacts on the brand such as where an employee comments negatively on one’s own brand or a third party’s brand.
One of the implications of such monitoring is that if the company becomes aware of a customer harassing an employee in the course of their employment on the grounds of a protected characteristic such as sex, race or disability then the employer does nothing to stop that then the employer will liable for this under the third party harassment provisions of Equality Act.
The Government is consulting on the abolition of the third party harassment procedures but there should remain a link between those who monitor the brand and any instances of unlawful conduct especially of employees.”
For further information, please contact Pitmans Social Media Team.
October 4th, 2012
Just as the internet begins to face the introduction of “generic top-level domains”, Nominet, the UK domain name registry, has announced a proposal to introduce a new service, known as direct.uk. Targeted at businesses, it will focus on increased security, including verification of registration addresses, monitoring for malicious sites and digital signatures to reduce the risk of the site being hijacked. The domains would be identified with a ‘.uk’ suffix (as opposed to ‘.co.uk’).
Should the new service go ahead, it will be important for businesses and owners of domain names with other suffixes to consider registering for the ‘.uk’ equivalent as well. The proposal is for a phased release, giving owners of registered trade marks priority, followed by holders of unregistered trade marks, before the service is opened up to all.
While some have suggested that priority should also be given to registrants of the equivalent ‘.co.uk’ domains, this is not currently within the Nominet proposal. It remains to be seen whether it will be incorporated before launch.
Nominet is currently seeking feedback on its proposals; the consultation ends on 7 January 2013. If they go ahead with the service, it is likely that domain registrations will begin towards the end of 2013.
For more information, get in touch with the Pitmans Intellectual Property team.
September 21st, 2012
Prompted by an incident involving a derogatory Twitter message sent to diver Tom Daley during the Olympics, the Director of Public Prosecutions issued a statement on 20 September 2012 about CPS policy on social media prosecutions. In the statement he observed that: “[a]ccess to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions.”
In those few sentences he summed up the considerable difficulty that the authorities have in policing this rapidly expanding forum for communication, using legislative tools that generally speaking pre-date the advent of online social media. Within the same statement the DPP quoted a statistic that approximately 340 million Twitter messages are sent every day. Of course only a fraction of these are ones that the British police and the Crown Prosecution Service have any jurisdiction over, and of those only a very small part contain the necessary ingredients of being sufficiently offensive or discriminatory, menacing or threatening, to warrant investigation and potentially prosecution. Identifying those that are truly deserving of further action, and perhaps equally importantly, ensuring that the police and other authorities are not wasting their time on matters which ought never to come to trial, is therefore a real priority.
To date, the record of the police and the CPS has been mixed, to say the least. In the Tom Daley case the comments, by semi-professional footballer Daniel Thomas, related to Daley and his team-mate Pete Waterfield. They were homophobic in nature. Without in any way wishing to excuse or diminish the seriousness of such behaviour, it was also a fact that the comments were intended (however misguidedly) to be humorous. As is often the case in these situations, Mr Thomas seemingly had not recognised, or forgotten, that Twitter is a public forum, and that his observations would potentially reach (as they did) a far wider audience than he had intended them for. For that misjudgement he was arrested, and the CPS was asked to consider whether he should be prosecuted.
In the statement he has now made, the DPP quoted a comment by the European Court of Human Rights in the 1976 case of Handyside v UK. In that case, the ECtHR said that freedom of expression, includes the freedom to say things “that offend, shock or disturb the state or any sector of the population.” While jokes that resort to homophobia, racism or any other form of discrimination are to be deprecated, and will in all likelihood cause public opinion of the maker of the joke to be diminished, the importance of free speech as a principle requires that such expressions should not be sanctioned with criminal penalties. On the basis of the principles articulated nearly forty years ago by the ECtHR, and reaffirmed in the DPP’s recent statement, Mr Thomas should never have been arrested, and the possibility of his being charged ought never even to have been contemplated.
At least in that case, matters did not go any further. The case of Paul Chambers was rather more serious. There a young man, frustrated at not being able to return home to his girlfriend in Northern Ireland because his local airport was closed by snow, tweeted a message to his followers that the airport in question had just over a week to get its act together, or he was going to “blow the place sky high!”. This was in the context of other tweets jokingly referring to having to resort to terrorism in order to get home. None of his followers were concerned by the message. When the airport heard about it, several days later, they were not concerned, but their procedures required them to refer it to the police anyway, as a non-credible threat.
Somehow, however, the police ended up taking it far more seriously. Mr Chambers was arrested at his place of work (he was subsequently fired by his employer), charged with sending a “menacing communication”, tried and convicted to a period of imprisonment. He appealed and his appeal was rejected by the Crown Court. He appealed again and at last, in a judgment which did much to restore common sense to the field of social media prosecutions, a panel of three High Court judges determined that he ought never to have been prosecuted. Their decision turned on what ought to have been a relatively straightforward point that, for a message to be menacing, it must have been intended to have been menacing, and some readers of the message must actually have felt threatened. As in the case of Mr Thomas, the Court found that even if it was poorly judged, the message was a joke, and that the prosecution ought never to have been brought. Some vindication then, at last, for Mr Chambers, but scant consolation for the two years of his life, and the loss of his job and, for a time, his liberty, that resulted from this heavy-handed interpretation of the law.
None of this is to say that there should not be consequences for people’s actions. As Mr Thomas, and indeed Kevin Pietersen in slightly different circumstances, have found – employers tend to take a dim view of professionals who express themselves in a way that is offensive or derogatory to others. For sportsmen, there is also the consideration that few major sponsors will want to associate themselves with people who hold views that the majority of the populace are likely to disapprove of. Similarly, where a statement is defamatory, there are remedies available to anyone whose reputation has been seriously injured by that publication. But criminal sanctions are the most severe and should be reserved for those cases in which the public interest in the matter being prosecuted outweighs the freedom of an individual to express themselves in a manner of their choosing.
Evelyn Beatrice Hall, in her 1906 biography of Voltaire, attributed a saying to him that was designed to demonstrate his views on the principle of free speech. “I disapprove of what you say, but I will defend to the death your right to say it.” As it struggles to get to grips with the new forums for self-expression that the internet and social media provide, the CPS will be publishing draft guidelines on the circumstances in which disapproval of a statement may not be enough, and criminal consequences ought to ensue. The publication of the draft guidelines will be followed by a period of extensive consultation, and that is a forum in which all of us should strongly consider making our opinions heard.
Will Richmond-Coggan is a solicitor-advocate and a director in Pitmans’ Dispute Resolution department. He works closely with our Sports, Entertainment and Media team in a variety of social media and online defamation disputes.