The Government has established a new working relationship with Facebook, Google and Twitter over posts that risk contempt of court, although the threat to ongoing trials is said to be “relatively minor”.
The new system for flagging contemptuous or “otherwise unlawful” content follows a call for evidence by the Attorney General’s Office to assess the impact of social media on the criminal justice system in 2017.
It was prompted by the collapse of the Angela Wrightson murder trial in 2015 which resulted from prejudicial comments posted on Facebook below legitimate news coverage of the trial shared on social media.
Posts threatening the two teenage girls facing murder charges (later found guilty) and those deemed “attacks on the court process”, resulted in the judge discharging the jury and ordering a retrial.
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The Court of Appeal subsequently issued an unprecedented ban on the media from publishing reports of the trial on their Facebook pages under the Contempt of Court Act 1981, or allowing the publication of any comments under their online articles.
Then-Attorney General Jeremy Wright MP issued a call for evidence to explore the issue further, but only received 24 responses – among them the News Media Association and Media Lawyers Association.
The tech giants did not respond, but engaged with the Government after the 12-week consultation period.
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Several responses raised concerns to the Government about who holds legal liability for unlawful social media comments – the media organisations whose page they are posted on or the platforms themselves.
Although this question has still not been definitively answered, the Attorney’s General Office said it is working more closely with Facebook, Google and Twitter for the first time, having established agreed points of contact to flag contemptuous content and remove it if necessary.
The Government has also made its concerns clearer with the tech giants.
In its response to the call for evidence, published today, the Government said: “This includes working with the tools provided by those organisations to allow concerns to be raised regarding such posts.
“These tools will ensure that social media platforms are alerted to potentially unlawful or contemptuous posts and can review them quickly, thereby mitigating the risk to the administration of justice.”
Google has also made changes to its autocomplete function after “rare” occurrences which saw people subject to anonymity orders such as victims of sex offences – automatically given lifetime anonymity under the Sexual Offences (Amendment) Act 1992 – named when users entered the defendant’s name into the search bar.
A Times investigation last year revealed this was happening, with Google saying at the time it does not allow “these kinds of autocomplete predictions or related searches that violate laws or our own policies and we have removed the examples we’ve been made aware of in this case”.
The Government revealed Google has developed an “improved and prominent feedback tool” and “a commitment to act quickly when notified of inappropriate autocompletes by the authorities”.
Responses on behalf of traditional media organisations argued that the Wrightson case was “unusual and exceptionally high profile” and not illustrative of a wider problem, although a small number of similar cases were identified by the Crown Prosecution Service and police.
Although such incidents are “unwelcome and capable of impacting on trials”, judges are currently able to deal with the issue without stringent reporting restrictions or discharging a jury, the report said.
“This included asking the editors of the relevant newspapers to remove the newspaper story from social media, thereby removing comments posted beneath the article, or giving clear directions to the jury to avoid and disregard social media commentary.”
The Government said it also plans to pursue better public education for ordinary social media users, including through a new dedicated webpage about contempt of court and with Young Citizens, an organisation that works in schools to help young people understand the law.
New guidance on contempt led by the Judicial Office is also being created, while the Government’s upcoming white paper on online harms will work with the police and CPS on issues arising from contempt on social media.
The Solicitor General, Robert Buckland QC MP, said: “We launched this call for evidence with the goal of discovering whether the legal process was at risk due to social media, and whether people working in the criminal justice system have the tools they need to manage that risk.
“I am pleased to say that our respondents reported that this risk is relatively minor, and that they are already confident that they can mitigate the risk where it does arise. We need to guard against any future proliferation of the threat, however.
“Social media users must think before they post – the rules are the same as those for traditional media, and being found in contempt of court could result in a fine or up to two years in prison.”
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