New media, new law? No thanks.

On Friday afternoon, Sheffield United footballer Ched Evans was sentenced to five years for raping a 19 year old woman.

Almost immediately, the #ChedEvans hashtag appeared on Twitter, and later, #JusticeForChed. Some tweets displayed confusion, questioning why one defendant was found guilty, and one not. Others displayed varying levels of victim blaming; some could only be described as vile.

This continued all weekend. Then, on Sunday, someone named the woman who was apparently the complainant. The insults became more personal, and the levels of abuse directed at the alleged victim increased throughout the day.

Rape survivors fall into a special category of victims of crime, entitled to life long anonymity, applying to the survivor’s name, address, image and any other matter, if the publication could lead to the public identifying the person. A breach occurs if a person causes identifying matter to be published in England and Wales in a written publication available to the public. Whilst this legislation has not been tested when applied to Twitter, courts have found newspaper websites guilty of contempt of court, which, it can be argued, is analogous to this situation.

Several people contacted North Wales police; a spokeswoman for whom said they were collating all the relevant information.

The Director of End Violence Against Women, Holly Dustin, issued a statement saying:

“It has long been law that rape complainants are protected by lifetime anonymity and those who have named her have been reported to the police for committing a criminal offence. This raises serious questions about the adequacy of the criminal justice system to deal with offences that occur online and we are calling for an urgent review of laws and practices.”

Does it? Or actually does this statement simply display a misunderstanding of how law works?

Law isn’t a shield preventing a bad thing happening – it cannot stop people behaving in a certain way; it can only simply prescribe a punishment or remedy should people behave in a certain way. Our modern digital world enables us to see more easily behaviour we knew existed in any event. We have already criminalised that behaviour because we knew it existed.

In addition, the provision for life-long anonymity isn’t the only law which would apply to those tweets – there is the possibility of offences having been committed under section 127 Communications Act 2003, if the tweets can be deemed to be grossly offensive or of an indecent, obscene or menacing character, and under section 4A Public Order Act 1986 if the tweets can be deemed to contain threatening, abusive or insulting words.

While I have every sympathy for the complainant in this case, we really must stop and think about calling for new laws every time something we don’t like happens – especially when the call goes out before the criminal justice system has even had the opportunity to show what it can do in this situation. It really isn’t helpful, and it lessens the remainder of the message.

*** It has been pointed out to me by @Pam_nAshes that the name was first mentioned on Twitter on Friday.

 

38 thoughts on “New media, new law? No thanks.

  1. There is no need to alter or introduce a new law when the one that is already there makes publishing the victims name an offence.
    I actually had a long chat with a mate about this earlier today & we both agreed that if this woman has gone to a publicist to make money off the back of this crime (another rumour on the net), she has made herself almost fair game by trying to cash in.
    If its just some morons trying to stick up for a rapist because he plays for their favourite club, then prosecute away!

  2. I think tat media have been prosecuted for contempt in this situation where they have identified a victim in an ongoing or pending trial thereby endangering true course of proceedings if the victim refuses to give evidence as a result.

    In normal circumstances media have been prosecuted for a breach of the various Sexual Offences Acts. The CPS are tough on this too. They prosecuted the media company and ‘the responsible journalist’ – usually, but not always, the editor.

    While the level of penalty is relatively low – usually a low-ish fine – for an individual it can have far-reaching effects. One editor I know was told that if he was convicted in the proceedings that were pending against him, the US visa authorities would not grant him a visa with that sort of conviction against his name.

  3. I’m astonished that nobody seems to think it shocking that rules prohibiting “written publication” might be applied to Twitter. Twitter is a conversation. Although the words spoken using it are in some sense “written” and in some sense “public”, ordinary people chatting on this and similar services are in no meaningful sense “publishing” anything. They are not part of “the media” and clearly will have no training in media law. If provisions like the guarantee of anonymity of rape victims are deemed to apply to casual remarks in digital conversations, the chilling effect on speech in these new media will be incalculably broad.

    Of course it would be better if people didn’t bandy about the names of rape victims, but it seems extraordinary to suggest that, while they can freely be mentioned in verbal conversation, they must be self-censored as soon as that conversation moves into any digital domain that isn’t strictly private. What in any case would we mean by “private”? One to one? One to five? One with a loud voice to the whole pub? Is mentioning a victim in a text unlawful if the recipient might allow their phone to be seen over their shoulder?

    I’m not sure if we need new law here, but I’m pretty sure we don’t need old law being applied illiberally to essentially personal communications of a nature that it would never previously have targeted.

    • I note David Banks, who is the word in law relating to media has replied to you below, so I won’t go into great detail, however, I will say that attempting to define Twitter in order to suggest the law doesn’t/shouldn’t apply is not something that is likely to fly with judges. Given that English courts have already applied libel and criminal law to the medium, attempting now to suggest that it isn’t a publishing platform is likely to be too late. Also, I don’t know if you saw the tweets, but the last thing the users were doing was conversing – they appeared to be deliberately using the medium to make sure as many people as possible knew her name. If that isn’t publishing, I don’t know what is.

      As for them not knowing the law, well, the court may take that into account in sentencing, and therefore may go easy on punishing him/her, but not knowing the law is never a defence, and is rarely mitigation. As I say above, looking at the tweets, this was deliberate action, showing little regard for the law.

      • I see Twitter and its cousins as a sort of quasi-publishing. It has the ability to behave like a conversation (from the POV of those taking part) in some situations and like a microblog in others. I think where it functions primarily as publishing it should be exempt from s127, since publishing happens within a content service. Content services are excluded from the definition of electronic communications networks and are defined as follows (32.7):

        “(7)In subsection (2) “a content service” means so much of any service as consists in one or both of the following—
        (a)the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;
        (b)the exercise of editorial control over the contents of signals conveyed by means of a such a network.”

        Where Twitter and others are behaving more like a “conversation”, then they may enter more of a communications network mode of operation. The law could conceivably distinguish between these two use cases. At the moment though we have communications offences committed electronically where their counterparts in other media would be entirely innocent. A new law for social media it would seem. I’m not sure how we should treat blog comments. Does it need to be the sender of the message who has editorial control or is it enough that we are still at any rate dealing with “the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network”?

        • If it is an argument that has been made before the court, it is not one to my knowledge that has succeeded. I think, and I am happy to be shown precedent to the contrary, that this argument is simply not a flier.

          • This is why people insist that judges don’t understand twitter-like communications. And this is why I feel the law lacks sufficient precision. There is clearly editorial control. You can delete tweets and revoke retweets after they have been sent. The “messages” are provisioned rather than sent, otherwise they could hardly be deprovisioned in this way. What else is needed? My head hurts from hitting the desk.

  4. I agree that the law isn’t ‘a shield preventing bad things happening’ but it should have some deterrent effect. The difficulty here is that a law that is an extremely effective deterrent to the old media – it is well known to editors who will be easily identified if they break it and rightly fear the impact of a prison sentence – has much less impact on new media users. The tweeters concerned are unlikely to have thought that they were breaking the law and some may (wrongly) believe that they can’t be identified. The CJS can punish them, but the damage has been done. I agree that we don’t need new law but we’re still some way away from achieving proper safeguards for victims in cases like this one.

  5. “..we really must stop and think about calling for new laws every time something we don’t like happens…”

    More to the point, politicians and civil servants should stop bloody giving in to the mob and trying to draw them up!

  6. To adambanksdotcom. The problem is that nobody outside of twitter has the “conversation” view of twitter, as judges seem to repeatedly show. Even if the case fails the person involved will almost certainly be prosecuted again using the section 127 “catch all” as with Paul Chambers and John Kerlan (see previous posts on this blog).

    Actually in this case, I think the people posting her name *do* have to answer for their actions- there is clear malice in their intentions to disseminate her name as widely as possible.

  7. Adam. While Twitter is certainly conversational, it has a degree of permanence that face-to-face conversation does not, and a tendency to be circulated far wider through RT than any such normal conversation. A conversation in a pub does not have the capacity to reach millions of people – tweets do.

    Indeed, one might argue that it has a greater degree of permanence that here-today-chip-paper-tomorrow newspapers (although their websites admittedly change this).

    One further point. It’s not just a victim’s name, address or photo that will breach the law here. The Sexual Offences Act 2003 changed it to “any matter” that would identify the victim. So anyone who thinks they will get away with veiled references to the victim should think again.

    Furthermore, the prosecution do not have to show the victim has been identified to the entire world, just that someone who knows the victim can recognise them from a detail published.

    • A conversation in a pub does indeed have the capacity to reach millions of people, as does a racist tirade on a tram. Take the scenario where two people are having a conversation in a pub and are unaware that they are being surreptitiously filmed, but are aware that this is always a possibility anywhere in public. If the two are having a conversation that could be deemed grossly offensive, or of an indecent, obscene or menacing character, and are at the very least aware that there is a risk that a reasonable person could take it that way, are they guilty of a section 127 offence when the video is posted to Youtube and linked on Twitter? Could the person who posted the video be prosecuted? Are the people who tweet about it or post links potentially guilty of an offence? Can we just be clear about who the law is trying to deter and why?

    • Or to be more precise here, if the two having a conversation in a pub were discussing what they know to be the rumoured identity of a rape victim, who is culpable in that similar scenario?

    • Useful point re identifying details.

      On the matters of Twitter’s permanence and reach, I think these are red herrings. Clearly, if the original legislators had meant to ensure victims could not be identified by any means of communication, they would have drafted more broadly. They did not, I would guess, because the effect on freedom of speech would have been both disproportionate and impractical.

      Publishing, in the traditional sense, requires a skilled process culminating in the creation of an artefact bearing the information. Nobody “accidentally” publishes something or does so “in the heat of the moment”. It’s by nature a deliberate and somewhat considered act. Even publishing a blog post goes some way (often not far enough, I would suggest) towards meeting these criteria.

      In these terms, tweeting, as a human activity, is nothing like publishing. It’s not even much like writing, and I would very seriously dispute the application of the phrase “written publication” (as in SOA amended 1992 s1) to Twitter. As I keep saying, it’s more like – in fact, exactly like – talking.

      Yes, technically it’s recorded, but as Matt points out, a conversation that happens to be preserved (whether or not with the prior knowledge of the participants) does not necessarily thereby become something other than a conversation.

      While publishing is a specific area of activity that comes with certain responsibilities, people have until now been pretty much free to say what they like in conversation, as long as no threat is expressed. It would seem arrogant of the criminal justice system to claim jurisdiction over the same human activity merely because it takes place in a new medium. That seems like something for which new legislation would be required, if it was felt to be a good idea (which, clearly, I would dispute).

      On @wiggy’s points above, again I think we’re chasing squirrels:

      the last thing the users were doing was conversing – they appeared to be deliberately using the medium to make sure as many people as possible knew her name. If that isn’t publishing, I don’t know what is.

      No, that isn’t publishing. Yes, the purpose of the legislation is to prevent the victim’s name being widely known. But the drafters chose not to pursue that purpose by forbidding it to be spoken, even to the largest crowd that might be gathered by the most unpleasant speaker with the most evil intent. They only chose to restrict what was “published in England and Wales in a written publication available to the public” or “included in a relevant programme for reception in England and Wales”.

      We all know very well the media to which those definitions were drafted to apply. To apply them to a medium of electronic conversation is perverse.

      Finally, as a non-lawyer I’m not much impressed by assertions like “this argument is simply not a flier”. Unless intelligent, informed lawyers are prepared to go into the lower courts and talk sense, of course bad decisions will be handed down. It’s far too soon to call any of this, let alone set it in stone.

      Great post and great comments :)

      • ‘Finally, as a non-lawyer I’m not much impressed by assertions like “this argument is simply not a flier”. Unless intelligent, informed lawyers are prepared to go into the lower courts and talk sense, of course bad decisions will be handed down. It’s far too soon to call any of this, let alone set it in stone.’
        :D They have been. Ben Emmerson QC represented Paul Chambers (Twitter Joke Trial) in his High Court appeal by way of case stated. I can’t recall who represented him at his Crown Court appeal, however, if either considered there was merit in the argument that it is not a PCN I am very sure they would have run it. That it hasn’t been run is in and of itself significant, which is why I said I would be happy to be corrected if anyone could point me to a case where it has been tried.

  8. It is possible to have a private conversation on twitter – and I think these should fall outside the law on anonymity. However all twitter users know their public conversations are searchable and there is no justification for breaching anonymity. even if the original breach was fuelled by a sense of injustice rather than malice

  9. But the tweeters weren’t having a private conversation- they were set to public tweeting and using the hash tag #justiceforched which as well as being searchable was one of the top trending twitter tags so shows up on the front page.

  10. I’m a bit confused as to why Section 127 would be used, rather than the provisions in law already made for any behaviour that causes the anonymity to be compromised? Surely this is about the act of revealing the name in question, not the mechanism by which it was done?

    My fear is that the judiciary (and to be frank many lawyers) simply don’t understand the nuances of Twitter (and other online speech acts) and how significantly they might differ from other publishing processes/mechanisms. So Section 127, which has huge implications for freedom of speech, risks becoming the means by which the CPS are prosecuting actions that are already covered by other laws but that happen to be conducted online. The other laws might be better understood (and therefore more strongly scrutinised) by those involved, whereas Section 127 is a bit of a catch all AND unknown entitiy – “It was online, it was menacing therefore they must be guilty”

    But I’d totally defer to those who have a greater indepth knowledge of the law in this. Just makes me antsy.

    • The provision for anonymity currently only carries a fine. Under the Public Order Act and the Communications Act, other sentences, including a prison term, are open. Also, there may well be an argument whether Twitter falls into a ‘written publication available to the public’, and indeed whether the ‘publishing’ occurred in England and Wales given where their servers are, whereas the courts have already determined that Tweets can fall foul of both POA and Communications Act, although there remains some concern about their use in that context.

      • But if the behaviour was previously determined to warrant a fine, why does the move into a new mechanism mean that it now warrants something more? Sorry – I’m not terribly au fait with the workings of how decisions are made as what people are charged under in what circumstances.

        From keeping an occasional eye on the stuff that Matt Flaherty writes about it just seems that Section 127 is being applied lots – in cases which either wouldn’t be offences offline or would be but for some reason they aren’t bring charged under laws that prioritise the action not the mechanism.

        • The reason (I suspect) it is a fine is that it is aimed at newspapers, so a fine is more appropriate, and in that sphere, is on a par with contempt provisions relating to court reporting generally.

          In terms of section 127, I know of three cases – Paul Chambers, the Twitter joke trial, which it is hard to say is anything other than a joke; Josh Cryer, who abused Stan Collymore, and it seems no-one really raises an objection to that case; and Olly Cromwell, and it seems there the objection is that people fail to agree the tweet was grossly offensive, but could be menacing.

          Leaving aside Chambers, as frankly, I don’t think anyone can explain that (and indeed, the judgment from the appeal is awaited), the contents of Josh Cryer’s tweets would have been a public order offence if said outloud offline, and it seems likely that the contents of Olly Cromwell’s could have been too – and realistically, in neither context could it be argued that their tweets were ‘conversation’.

  11. What do you mean by “rape culture” that you refer to in The Guardian? It’s a meaningless term. The fact some people make offensive comments about a victim because one of their football heroes has been jailed for raping her does not mean there is such a thing as “rape culture”, more a culture of football fans justifying any foul behaviour by their heroes, regardless of the their possession (off the pitch) of feet of clay. It was the same with John Terry, the recent racism allegations and Tottenham Hotspur’s manager’s tax problems.

  12. What you describe is rape culture – in part it is the blaming of the victim because of hero-worship of the offender.

    No, with the greatest of respect, it isn’t. It’s football culture where anything is acceptableas long as The Lads continue to score goals. Harry Redknapp’s dubious tax affairs and Luis Suarez’s racism are not part of rape culture but are the beneficiaries of an attitude that excuses anything as long as footballers and those associated with the game continue to deliver wins.

    • Why does it have to be either/or? The same behaviour can be interpreted in lots of different ways. The wider cultural phenomenon of rape culture is illustrated in incidences like this. Victim-blaming due to hero-worship – which, with respect, you would be hard pressed to argue hasn’t happened here.

      However, this behaviour can also be seen as an illustration of the culture that you refer to of football fans not really caring what players get up to as long as they score goals. We can condemn this on several levels, no?

        • Rape culture is pervasive narratives about rape that exist despite evidence to the contrary. Rape culture is pervasive imagery of stranger rape, even though women are three times more likely to be raped by someone they know than a stranger, and nine times more likely to be raped in their home, the home of someone they know, or anywhere else than being raped on the street, making what is commonly referred to as “date rape” by far the most prevalent type of rape. Rape culture is pervasive insistence that false reports are common, although they are less common (1.6%) than false reports of auto theft (2.6%). Rape culture is pervasive claims that women make rape accusations willy-nilly, when 61% of rapes remain unreported.

          just one of the many potential extracts from: http://www.shakesville.com/2009/10/rape-culture-101.html

          • None of which appears to have anything to do with the facts of this matter. How do any of the matters you have referred to affect this incident? Were any false accusations involved? Arguably yes, since one of the men was acquitted. Were these men known to the complainant beforehand? Clearly not, so bang goes the theory again.

          • And nobody has the foggiest clue what percentage of accusations of rape are false. Many figures get bandied about in the media, but all are based on some kind of voodoo methodology.

            I don’t know where you get your 1.6% from (or for that matter your 2.6% for auto thefts) but low end figures tend to be estimates of the number of accusations that can be *shown* to be false. Using them as estimates of the number of accusations that *are* false is just as daft as it would be to estimate the number that can be shown to be true and pass that off as an estimate of the number that are true.

            If the subject was less emotive it would, I think, be obvious that nobody *could* know what percentage of accusations were false.

  13. John, did you read the article at the link I recommended? You asked what “rape culture” was and I linked to an article explaining one take on what it was that (I think) captures the many different ways rape culture can manifest itself. Was that helpful to assist in your understanding with how we were using the term?

    • Yes, I did and it is simply not the case that this is anything like what happened here. Many UK football fans will excuse even murder if it’s one of their players accused. That’s not a widespread belief that rape is OK, it’s a belief that their heroes are above the law.

      • Well, I think we’ll have to agree to disagree. I can see how this situation can be evidence of BOTH rape culture AND the football hero culture you reference, depending on the focus.

  14. Great blog and comments, no shirking the thorny issues! Loving the general badassnuss of wiggy’s approach ;) So cheers, hope you get props at the awards.

    I just wanted to add my 2p to this discussion. Sorry if I bore anyone.

    On the narrower point of the law dealing with new and different forms of communication, as usual, it is by analogy that lawyers and judges have to explain them. It is left to the judiciary, which probably knows rather little about any of it, to analyse (and analogise) this conduct. Is tweeting like writing a letter? Posting something up on the wall? Having a casual chat with a few people? Announcing to an audience? Publishing an article?

    Er, well, its kinda like all of them, and yet totally different?! Certainly not everyone on here seems to agree. Obviously, it’s nuanced, arguable, it depends on the circumstances of the case. Is the conduct of the Evans tweeters analogous to publishing an article (for which the provision was intended)? I’d say yes. But is it also analogous to announcing to a crowded pub? Well, in some ways, for those who use it, yes. Both analogies can be said faithfully to describe the tweets, but the practical realities of the two situations are totally different. One falls under the section, the other doesn’t (if I’m right). And yet twitter is neither, and both! My brain hurts :(

    Analogies like these clearly aren’t entirely satisfactory. This kind of failure to find precise and true understanding of new forms of communication perhaps mirrors the more general (and more important) problems in the increasingly important relationship between the internet and the law.

    This is the internet age. Things aren’t the same online as in reality. The technology is different. The ways people use technology are different. Accepted behaviour and social norms are slightly different in (and within) cyberspace. There has to be a better way for the law to rationalise conduct which understands it for what it is, in its proper context, not for what it most appears ‘like’ in the real world to people who are unfamiliar with it all. Much of society (let alone the law) hasn’t even begun to understand the fundamental nature of this movement. This isn’t ‘like’ anything. This world is different, people behave differently, and we need jurists and law-makers to recognise this. Because it’s complicated, and it touches on a great number of laws concerning our fundamental freedoms. And this is only the beginning.

    I’m not convinced it’s enough to say ‘let the law work it out’. What on earth does the poor senior judiciary know about the internet? They don’t know what goes on, they need guidance. They grew up in a completely different world! Trying to ease internet activity into the law like it’s simply analogous to traditional activities is problematic. I fear (maybe because of all the publicity) it can lead to dubious statutory interpretation, bad law, and some pretty reactionary and contentious results (like the Chambers case you mention, or perhaps the 52 day prison sentence for the Muamba tweets). This fundamental lack of understanding is perhaps partly responsible for the growing failure to prevent the control of information and behaviour by public or private entities, and the erosion of the rights and freedoms of individuals which the law ought more adequately to protect. This is no longer a frightful vision of the future. It’s happening now. And the law clearly isn’t keeping up.

    Unfortunately, I don’t think it’s realistic to demand the CJS or the State not seek to ‘stop people behaving in a certain way’. They’ve always done that! Consequentialist theories of punishment pervade the CJS, you only have to look at the (popularly supported) heavy sentences handed down to the ‘rioters’ to remember the important role of deterrence in sentencing. Prevention of crime (not simply dealing with crime) is more or less the main overarching aim for the CJS, just like it is for the enormous private security industry. It’s what citizens (and consumers) demand. And, arguably, using an economic rational choice explanation of crime (implicit in saying, for example, ‘[the CJS] can only simply prescribe a punishment or remedy should people behave in a certain way’) leads us to the ‘prevention of crime’ purpose as well! The priority is now to limit the opportunities and detect likely crime before it’s even happened (by using surveillance, for example).

    ‘Crime prevention’ and attempts to control conduct are here to stay, it seems. All the more reason for the judiciary and lawmakers to be informed and to stand up for the freedoms of individuals in a radically changing world. The technology is only going to develop further, before long most of what you do and say could quite feasibly be monitored, and society will incrementally have become one of those 20th century distopian visions we all used to fear. Not cool.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>