Social media in the riots
Social media is yet again in the news following the August riots. There were numerous arrests and prosecutions based upon posts and messages on Facebook and Twitter allegedly inciting others to join in rioting, violence and looting, as well as the photographic and video evidence found online and on people’s mobile devices showing the commission of offences; substantial custodial sentences have been handed down to many who have been convicted.
At the same time, the police gained confidence in harnessing the power of social media. The Metropolitan Police Service have confirmed that they used intelligence garnered from social networking website Twitter, as well as messages sent via the semi-private Blackberry Messenger service to thwart potential trouble (“BBM” the Blackberry Messenger instant messaging application for Blackberry devices enables messages to be easily sent to a large group signed up to it as well as to individuals).
Many police forces used social media to inform their communities of the situation locally during the disorder (eg via Twitter feeds and dedicated websites) and then to seek evidence and identify offenders after the event. For example, the Metropolitan police set up their own Flickr stream of photographs to seek the public’s help to identify those alleged to have been involved in the riots. Greater Manchester police have kept people informed of trouble, and of those arrested, charged and before the Courts via their Twitter feed @gmpolice, and their own Flickr and real-life “Shop a Looter” adverts.
Interestingly, the general public have also utilised social media to mobilise their own community clean-up operations, with groups on Facebook and messages on Twitter under hashtags such as #riotwombles and #riotcleanup being deployed successfully to co-ordinate efforts.
Meanwhile the government have mooted the controversial idea of the possibility of “turning off” texting, messaging or social networks during times of civil unrest. In particular the Prime Minister has expressed concern at the use of Twitter, Facebook and semi-private messaging services such as BBM to co-ordinate anti-social behaviour, and spread unrest. This idea of course waves a big red flag at civil liberties and freedom of speech, and also raises questions about the technical feasibility of such an idea.
Social media as evidence
Social media, be it the micro-blogging in 140 characters of Twitter, or the social network giant that is Facebook, or the video and photo uploads of YouTube and Flickr, is now firmly embedded in our society. Is it therefore any surprise that it is being used either to facilitate the commission of crimes or to help to apprehend and secure convictions of offenders?
In fact, evidence from a wide variety of sources of social media has been used for some considerable time in legal cases ranging from the obvious criminal matters, to family cases, employment matters and personal injury cases. In the last year, however, the more traditional media (newspapers, radio and television) appear to have taken great pleasure in highlighting the presence of social media evidence, and barely a day seems to go by without a headline proclaiming the Facebook element of a case or that Twitter users are defying super-injunctions.
Evidence from people’s private lives has always been part and parcel of court proceedings; courts have always been able to order the disclosure of private letters, diary entries or emails if they are relevant to the issues which need to be decided. Why then is it so newsworthy or surprising for evidence from social media sources to be sought and used?
People are often rather naive in relation to social media, forgetting that the comments that they make on Facebook, or tweets to “friends”, or pictures that they upload to Flickr are available to more than just their small group of friends and can be seen by the world at large. Perhaps it is the bragging element of these interactions which makes it so newsworthy; it is rather satisfying to hear about someone who gets their comeuppance for gloating about how clever they’ve been on their Facebook page, or posting a video of their exploits on YouTube. Even if someone keeps tight security and privacy settings on their social media movements, disclosure of the evidence generated can still be sought in legal proceedings. What used to be a conversation down the pub between friends is now carried out on the world stage of the Internet, and a trail is left behind. This trail creates a vital evidential resource.
Of course the courts are not going to allow fishing expeditions to trawl through all sources of social media for evidence, but postings on a person’s Facebook profile, or messages typed and tweeted on Twitter may well be relevant evidence and therefore the proper subject of disclosure applications.
The courts are getting wiser to social media, and an application for disclosure, either of the contents displayed, or a Norwich Pharmacal order to identify the person behind particular social media communications, is far from unusual; see for example the cases of Applause & Firsht v Raphael [2008] EWHC 1781 or Sheffield Wednesday Football Club & Others v Hargreaves [2007] EWHC 2375.
Procedural uses for social media
Meanwhile on a procedural note, back in 2008 the Australian Capital Territory Supreme Court allowed service of legal documents via Facebook (via BBC), and in England the High Court allowed service of an injunction via Twitter as long ago as 2009 (Griffin Law). Of course the rules in relation to substituted service, make this an increasingly likely prospect; see CPR Part 6 and PD 6A. If social media is part of people’s lives, then it would appear to be a valid method of service, the point of which is to bring legal proceedings to someone’s attention. It is little different to the now rather old-fashioned method of leaving a telephone answering machine message for someone to inform them of the existence of proceedings and how to get hold of the relevant documents.
The recent case of W v M [2011] EWHC 1197 (COP) is said to be the first example of an injunction specifically preventing publication of details which could lead to the identification of a Court of Protection patient on any “social network or media including Twitter or Facebook”. Mr. Justice Baker appears to have issued this specifically worded injunction to prevent the anomaly whereby the traditional media is prevented from publishing information, only for it to surface on social media or the internet, thereby defeating the injunction.
With so much of our lives displayed online, it is likely that the courts are going to see ever increasing quantities of social media evidence, and lawyers need to keep abreast of not only the different types of social media, but the uses to which that evidence can be put; not to mention the ways of adducing it as evidence, or methods of using it procedurally. The recent riots and disorder are a perfect illustration of the way in which the legal system can and does use social media very effectively.
Amanda Millmore is a non-practising barrister and founder of CPD provider Legal Training. The material in this article is expanded upon in a 1 hour accredited CPD course “Social Media as a Legal Tool”.
Email amanda@legaltraining.co.uk.
Follow her on Twitter @legaltraininguk.
Legal Training is a well-established CPD provider, offering 100 per cent online, accredited CPD training for barristers, solicitors and legal executives. Courses cover a number of practice areas, including Family Law, Criminal Law, Property Law and Civil Law, as well as general IT skills and Chambers’ Complaints Handling.
