Can we police Twitter?

Vanessa Barnett, technology and media partner at City law firm Charles Russell LLP, takes a look at what counts as a public order offence on Twitter.

"Turns out I don't have very thick skin after all so I am closing my twitter account. Enjoy the games. Signing off, skelts x."

With those words Blue Peter presenter Helen Skelton closed her Twitter account. This comes after Tom Daley was sent very offensive messages when he missed out on a medal with his diving partner Peter Waterfield. The Tweeter has been cautioned by police. And the list goes on, with news breaking this morning of yet more Troll action directed at Daley.

Last week of course we also saw the conclusion of the Twitter joke trial with Paul Chambers finally being able to clear his name – many thousands of pounds and a spell of unemployment later.

So the question is this: can we police Twitter?

As Barack Obama says, “yes we can” – but as Barack Obama’s found out since he got to office, sometimes things are not quite as easy as they seem. The legal framework for policing Twitter is a fragmented collection of laws which existed pre-Twitter but which are now being deployed to police unacceptable Tweets.

Depending on the nature of the Tweet, there are various public order offences which can be used by police to deal with offensive Tweets. For example, it’s an offence to send with intent a message that is grossly offensive or of an indecent, obscene or menacing character. It’s also an offence to cause harassment, alarm or distress by a course of conduct which amounts to harassment of another. Finally, it’s an offence to use with intent threatening, abusive or insulting words which cause another person harassment, alarm or distress and which the speaker intends to have that effect. Each of these offences are capable of being committed by sending public Tweets.

In relation to direct messages on Twitter, it’s an offence to send an indecent, offensive or threatening letter, electronic communication or other article to another person.

The police and the Crown Prosecution Service are still learning how to react to unacceptable Tweets. In relation to the Twitter joke trial, Paul Chambers was stuck at an airport unable to catch a flight to go and see his girlfriend. In a moment of utter frustration he Tweeted “Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!”.

Notwithstanding that the message was only found days later and no harm had actually been caused, the police decided to prosecute Chambers. He was originally found guilty but last week was successful on appeal. The court, apart from finally ending the trauma for Chambers, gave us some masterful guidance on free speech in the context of the possible offences that could be committed using Twitter:

“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.

“For those who have the inclination to use Twitter for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.'”

So where does this leave us? I think it rebalances the status quo. Things which have always been illegal will continue to be so and the police will continue to learn what is an appropriate response. It is definitely not open season for insults and the Trolls may well find themselves under pressure not just from the police but from the Twitter community. It’s interesting to see the teenager caught up in the Tom Daley Tweet was heavily admonished by other Twitter users and apologised very quickly.

The challenge for police will be to know what the difference is between a joke (Chambers) and an insult (Daley or the Skelton Trolls). All of us have a ‘feel’ for what’s right, but we cannot point to any rules anywhere which tell us where the line lies. Now would be the right time for industry bodies to work with the Director of Public Prosecutions to develop guidelines on when the police should, and should not, swoop in. Law enforcement need our industry expertise to help and we shouldn’t be shy in assisting. Having better guidance will be a benefit to all of us legal Tweeters.

Trolls should also be aware that it’s not just the police who can come and get you. The law of defamation will still apply and in the UK the government is proposing an addition to the Defamation Bill currently before Parliament which will give new powers to enable the victims of such treatment to identify their on-line aggressors much more easily than now.

Think before you Tweet!