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A Handy Guide On How To Tweet Without Getting Sent To Prison

At least seven people have been convicted for posting offensive messages on social media in the past three years. Here’s how to avoid that happening to you.

Robert Riley, 42, was last week sentenced to eight weeks in jail for posting offensive tweets about Leeds teacher Ann Maguire, who was stabbed to death.

Christopher Furlong / Getty Images

Riley, from South Wales, is the latest person to be convicted of posting hateful messages online. In one of his tweets, he said: “I would not have just killed Mrs Hissypants Mrs Maguire, I’d have killed all the b*****d teachers.” He targeted people involved in other tragedies too, while also finding time for several racist tweets.

He had fewer than 500 Twitter followers (his account is now deleted), and had no connection to Mrs Maguire, 61, who was stabbed to death by a pupil at Corpus Christi Catholic College in Leeds on April 28.

Georgina Scannell, chairwoman of the bench at Swansea Magistrates’ Court said: “The offensive messages outraged the public. You had complete disregard for the tragic death of Ann Maguire. Besides this, countless other vile messages were made by you. The offences are so serious that only a period of immediate custody can be justified.”

He is the second person to be charged with sending offensive messages about Maguire – the first was 21-year-old Jake Newsome, from Leeds, who appears in court on Wednesday.

This is no new development. There have been a string of similar cases in the last three years where people have been arrested and convicted for their tweets:

— Back in 2011, Sean Duffy, then 26 and from Reading, was given an 18-week jail sentence for mocking the death of teenager Natasha MacBryde, who jumped under a train. This became one of the first “Twitter troll” stories to make headlines – and just months later in 2012 he was given a 300-hour community service order for uploading a doctored image to Facebook of Sophie Taylor, who was accidentally shot by her boyfriend.

— In 2012, 17-year-old Reece Messer, from Weymouth, was arrested for tweeting a string of offensive messages to Olympic diving star Tom Daley.

— The same year saw 60-year-old Frank Zimmerman given a 26-week suspended jail sentence for harassing novelist-turned-MP Louise Mensch. Zimmerman, who suffers from agoraphobia, used multiple identities to contact celebrities via Twitter and email.

— Liam Stacey, then a 21-year-old student, spent 56 days in jail for inciting racial hatred in 2012, after mocking the black footballer Fabrice Muamba, who collapsed while suffering a heart attack in the middle of a match.

— Michaela Turner, 24, was given a suspended eight-week jail sentence for making racist remarks after the death of soldier Lee Rigby last year. She admitted she had been drinking.

— In January this year, Isabella Sorley, 23, and John Nimmo, 25, were jailed for posting dozens of offensive tweets from as many as 86 separate Twitter accounts, directed at feminist campaigner Caroline Perez-Criado and Stella Creasy MP. Sorley received a 12-week jail sentence, while Nimmo got eight weeks.

Often, people convicted for something they’ve said on social media tend to have a few things in common, ranging from boredom and loneliness to alcohol abuse and mental health problems.

But the law applies to everyone. Any tweet or facebook status could potentially provoke a prosecution or a civil lawsuit, such as a libel writ. So how can you avoid getting arrested for your tweets?

1. Don’t people tweet offensive things all the time? Why do only some people get convicted?


This is a very good question. Basically, you can’t say anything – in an electronic form or otherwise – that is “grossly offensive or of an indecent, obscene or menacing character”, according to the Communications Act 2003.

That doesn’t mean you can’t say anything nasty. Grossly offensive means something that is likely to shock most people, like gloating about the murder of a much loved and respected teacher.

Context is everything: an Appeal Court judge in 2006 said that the “same content may be menacing or grossly offensive in one message and innocuous in another”. For example, quoting offensive dialogue from a film is different to using the same words to annoy someone.

2. Does someone have to complain to the police for someone to be arrested for tweeting?


No. Crown Prosecution Services guidelines for prosecutors, issued in 2013, are clear that “there is no requirement that any person sees the message or is offended by it”.

3. If someone is only a minor, isn’t that a defence?


Nope. A 17-year-old was arrested for sending offensive tweets to Olympic diver Tom Daley in 2012. People aged 10 to 17 are usualy dealt with by youth courts and given different sentences but there’s nothing to exempt them from this legal threat.

4. What if I was really, really drunk?


Judges and magistrates don’t tend to like that line of defence very much.

Isabella Soley, one of the two people convicted of sending abusive messages to feminist campaigner Caroline Criado-Perez admitted she was “highly drunk” when sending them, as was Michaela Turner, who received a suspended sentence for Facebook messages about murdered solider Lee Rigby.

5. If I defame someone who can’t afford to sue me, is that risk-free?


Ah, no. So then there’s the risk of defamation and social media. Anything you say that is “likely to cause serious harm” to someone or “expose them to hatred or ridicule” could potentially see you appear at the High Court, or more likely see you make a grovelling apology. This applies whether it’s Facebook, Twitter, in print, or you wrote it on a wall somewhere.

The best defence is that the allegation is true, and in the context of “slagging someone off”, it’s going to be hard to convince a court that someone definitively is a “bellend”. Plus, defending yourself in court is a very costly business.

You could say there’s more chance that a rich, famous person will have the resources to sue, but there are “no win, no fee” conditional free arrangements these days that mean that ordinary Joes can start libel proceedings.

6. So does the law essentially say, “Don’t have any fun on Twitter” ?


The CPS’s guidelines say prosecutors should “have regard to the fact that the context in which interactive social media dialogue takes place is quite different to the context in which other communications take place”.

It goes on: “Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous. Communications intended for a few may reach millions.”

So “banter” is fine – for a prosecution to go forward, it can’t just be: “Offensive, shocking, or disturbing; satirical, iconoclastic or rude; an unpopular or unfashionable opinion … even if painful to those subject to it”. For it to be malicious it has to go beyond those definitions.

7. Which subjects should I avoid?


The law doesn’t clarify any specific subjects that any more dangerous to tweet about than any others – but there’s a clear trend towards convicting people who say disgusting things about high-profile people and news events, such as the Ann Maguire killing and the murder of the solider, Lee Rigby.

The increased interest around a news event like that certainly helps amplify someone’s vile tweets – newspapers love a “troll Twitterstorm” story – thus meaning that people tweeting offensive things about normal, everyday people not involved in anything extrordinary.

Twitter says it has a clear process to work with the police on this.

8. But hang on, my tweets aren’t the same as the front page of a newspaper, are they?


You may have a point, but that’s not how the law sees it.

Media law expert and journalist David Banks, co-author of MacNae’s Essential Law for Journalists tells BuzzFeed: “It’s considered a form of publishing, but it’s not the same as the front page of the Daily Mail. Newspaper editors have done far more to jeapordise the legal process and the last time any of them were jailed was in 1948,” he says.

“It’s a major issue for the lawmakers and also the platform providers, in terms of what guidance they are giving people. It’s not in their interests to create a platform that can get people criminalised.

“It does seem that social media is providing a constant challenge to the way the law operates in this country.

“The conflict is that the social media is conversational in its nature – it’s a social medium and people get used to its banter-laden expressions of opinions. It’s the saloon, but it’s all on the internet.

“But the point is that when people said something in the saloon it wasn’t a problem. On Twitter they are having the same conversations, but they are are being repeated and retweeted and can be seen by anyone. That’s the real challenge and it’s one that the government is ducking.”

9. What if I just retweet or repost something someone else said?


That’s no defence either. The CPS, in its guidelines for prosecutors, makes clear that retweeting and repeating something should be treated in same way as the original post.

10. Isn’t there a free speech law protecting us all anyway?


Yes and no. There’s no specific free speech law in the UK, but we are covered by the Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression.

Much of media law is concerned with finding the balance between Article 10 and other legislation governing what we can and can’t say, including defamation laws and the Communications Act, and every case is slightly different.

Article 10 makes clear that each European country will have laws that to some degree curtail freedom of expression in some way, “the protection of the reputation and rights of others”. In short, you have no right to expose someone to substantial hatred and ridicule or anything that’s grossly offensive.

11. If I have broken the law, is it OK if I just say “sorry”?


It can certainly help you.

In deciding whether something is malicious, prosecutors are told to decide whether the poster has shown “genuine remorse” and if they’ve taken swift steps to remove or block the post from public view.

This can also have a big effect on the kinds of damages that would be paid out in the event of an unsuccessful libel case.

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