Round the Law in 140 Characters

Businesses exhort people to “Follow us on Twitter” and every newspaper article has the ubiquitous Twitter icon next to it, urging readers to retweet it to their Twitter followers. Products can be made or destroyed by one tweet from someone with a large following. Creating viral buzz online allows small entrepreneurial outfits to compete alongside multinationals with vast promotional budgets.

The sheer immediacy of the medium is both its greatest attraction and its greatest pitfall. Nothing is staler than a tweet on a topic which was trending six hours ago. The downside of this is that the usual safeguards and oversight mechanisms are not applied by Twitter users. It is a largely unmediated, fast-moving environment.

Three recent cases should make businesses as well as individuals take a long hard look at legal risks in their use of Twitter, and consider what can be done to mitigate those risks.

Lord McAlpine succeeded in his libel claim against Sally Bercow, when Mr Justice Tugendhat found that her tweet “Why is Lord McAlpine trending? *Innocent face*” meant “in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care.”

Mr Justice Tugenhat’s definition of “natural and ordinary” is not one which would occur to the average Tweeter on the street. However, they’d also be unlikely to disagree with his assessment that Ms Bercow was being “insincere and ironical” (para 84 of the judgement) in her claim of innocence. Her tweet was clearly intended to refer to the BBC’s Newsnight programme, which made serious allegations of child abuse and referred to (but did not name) a prominent politician from the Thatcher years as a potential perpetrator. Ms Bercow’s tweet, therefore, would be understood by most people who were aware of the background as a claim that Lord McAlpine was the man in question.

In fact, like many people before or since, she believed she knew a bit of salacious gossip and wanted to share it. However, unlike people who swap gossip in the office or at the pub, by doing so on Twitter she immediately shared her libellous assumption with her sixty thousand followers. Furthermore, each of her followers was able with one or two clicks to retweet her comment to all their own followers, increasing the impact exponentially.

The BBC was rapidly forced to withdraw its Newsnight claims, admit that it (and its informant) had been mistaken and pay heavy damages to Lord McAlpine. That left all the tweeters who had followed the BBC’s lead or, like Ms Bercow, gone even further in naming the suspect, liable for having themselves “published” the libel.

Ms Bercow’s public position and the sheer scale of her distribution network for the offending tweet determined Lord McAlpine to continue action against her, while not pursuing the other tweeters and retweeters. This was a choice on Lord McAlpine’s part. Anyone who tweets (or retweets) a libellous statement is potentially vulnerable to a claim, and that claim may be brought at any time during the twelve months following the publication. Damages and legal costs are likely to result. Limited circulation and speedy removal of an offending tweet may mitigate the harm done, but does not eradicate the breach of law altogether.

A few days after the Bercow case Neil Harkins and Dean Liddle each received suspended sentences for contempt of court for publishing on Twitter and Facebook photographs purporting to be those of Thompson and Venables, the child killers of James Bulger over twenty years ago. The two culprits are the subject of a lifetime publicity ban to protect them against reprisals. Once again, the thoughtless sharing of supposed “inside” information had dramatic consequences.

Finally, teacher Holly Price was suspended for twelve months by her professional standards body, following her conviction for tweeting the name of the woman whom footballer Ched Evans was convicted of having raped in May 2011, along with abusive comments.

The above cases show is that the 140 character limit on a tweet is no bar to putting oneself on the wrong side of the law. Furthermore, this is not merely a problem for individuals; companies need to build a strategy for dealing with Twitter and other social media or risk major reputational and financial harm.

Any company wanting to take advantage of Twitter and other social media needs to ensure that it has a clear, communicated internal social media policy. This needs to cover both access to and use of any corporate social media accounts but also what personnel do on their own time on their personal accounts ( like Holly Price). Such a policy needs to be incorporated within employment contracts, so that bringing the company into disrepute online can be properly dealt with as a disciplinary issue.

Furthermore, someone needs to be nominated to have 24/7 awareness of how a brand is doing online. Monitoring one’s online presence is critical. Major hotel chains, for example, have strategies in place so that guests who tweet dissatisfaction with check-in times or hotel cleanliness to their followers receive follow-up from the hotel as if they had complained by email or in person.

Twitter meltdowns can be provoked by anything from a company spokesman having a Ratner moment to the company’s products being implicated in a fatal accident. It can be easy to be wrong-footed as trouble starts building in cyber-space, and an ill-judged reaction – particularly, ill-judged support for a friend or colleague seen as being under attack – can often make matters worse. Accordingly, nominated points of contact, co-ordinated strategies and rules about who is – and who is not – allowed to represent the company point of view online need to be in place and known about before the twitterstorm strikes.

No-one can afford to ignore either the benefits or perils of social media. Those 140 characters may take less than a minute to key in, but that minute could bring down a company. Businesses may hope for the best, but when it comes to Twitter they should plan for the worst.

Susan Hall said, “Along with mobile working and Bring Your Own Device issues, the use and abuse of social media is one of the biggest IT challenges facing businesses today. Disengaging isn’t an option; companies are going to have an on-line presence whether they like it or not. Refusal to engage with social media issues is as dangerous as ill-thought out engagement. If a company wants to direct the flow of conversation on social media about its brands and products, it must start from having a coherent, well-communicated social media strategy, based upon legally binding and enforced social media policies.”