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Should Tweeters be held in contempt of Court?

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A number of the national newspapers have published articles questioning how those who tweet about ongoing Court cases appear to escape the proceedings for contempt that most newspapers feel that they would automatically be subject to, if they published articles of a similar nature.

This issue has arisen specifically as a result of a tweet sent on the first day of trial by Rio Ferdinand, brother of the primary prosecution witness and QPR player Anton Ferdinand, who is said to be the subject of the allegedly racist comments made by Mr Terry.  Rio Ferdinand is a regular user of Twitter and is believed to have approximately three million followers.  This means that his tweet had a wide circulation and was then retweeted more than 3,000 times, therefore reaching an even wider readership. 

He made reference to a Jim Carrey film (the title of which is perhaps best not repeated) which has been interpreted by some to be a comment intended to convey his feelings as to Mr Terry's account of the incident which happened at Loftus Road last season.  As it was he made the comment on the day his brother was due to give evidence to the Court, so, theoretically, his comment could have another, if perhaps unlikely, interpretation.  The comment may, of course, be entirely unrelated.

However, those in the print media have become rather agitated about the apparent unwillingness of the judicial system to address the potential role of social media in contempt proceedings, and maybe with some just cause.

Since the decision to prosecute Mr Terry, there have been endless tweets sent by those who are partisan in this 'battle' between the supporters of both camps, and others who have entered the fray giving the benefit of their views on the substance and advisability of the proceedings.  The most high profile of these was the inveterate tweeter and former QPR captain Joey Barton.  His publication of his views was referred to the Attorney General for consideration of prosecution but a decision was taken not to bring any proceedings.  To be able to prove guilt in contempt proceedings, it requires the publication of something that causes a "substantial risk of serious prejudice or serious impediment to active proceedings".  The basis of the Attorney General's decision regarding Mr Barton was said to be that as Mr Terry is being tried by a Magistrate, the Magistrate is considered, as with Judges, to be independent and beyond the influence of the media, therefore failing to meet the requirement for the Crown to be able to prove that there was a substantial risk.

One wonders what the result of the AG's deliberations would have been if Mr Terry was to be tried at the Crown Court by a jury.  There are endless examples of how the readership of newspapers have allegedly been influenced en masse by the views published in their pages.  Journalists are at least required by their editors to check the facts in their stories or articles to ensure accuracy, some perhaps achieving this end better than others, but tweets are not subject to any requirement of factual accuracy (beyond the the threat of libel proceedings), and are often predominantly a statement of the tweeter's personal opinion, justified or otherwise.  Indeed, in the same way that we perhaps seek out a newspaper that reflects our own views, we perhaps use the same criteria in choosing those to follow on Twitter, maybe also seeking out those with more florid or interesting views on the subjects of interest that day.  Even if we start to follow a particular individual because of interest in their views on one issue, we are then subject to their views on every subject unless and until we take action to 'unfollow'.

One also wonders what the decision would have been if any similar comments had been published in a newspaper.  Theoretically the reason for the AG's decision not to prosecute Mr Barton would as easily apply to the print media as social media, but the feeling from the articles published on the subject by the print media suggest that they perhaps feel it may have been different.

In an article on the Guardian website, the media law consultant David Banks said " While the likes of Rio Ferdinand and Barton may not be able to influence magistrates, or a judge, they could certainly influence jurors. If a weekly paper selling a few thousand copies can be hauled up for contempt, then why should not a tweeter with a 'circulation' of millions.  Furthermore, it is easy to see, even at a magistrates trial, how a tweeter with millions of followers might whip up a tweetmob that might put off a witness from testifying, thus causing the serious impediment to proceedings that could lead to a contempt charge."  Set in the context of the deeply unpleasant trend for internet 'trolling', this is perhaps a very real risk.

The Law Commission is due to report on the issue of contempt and the internet but not until 2014.  Given that technology develops at a pace unknown to the law, and given what now seems to be a growing trend for the outspoken to comment on pending or ongoing court proceedings, it seems that serious consideration should be given to a considerable acceleration in the production of this report.