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The rise of social networking has introduced a raft of unenviable ’firsts’ into the legal domain. These precedents have meant high-profile work for lawyers specialising in privacy and libel and technology, media and telecoms (TMT).
The ugly underbelly of Twitter has been exposed by the fallout from footballer Ched Evans’ rape conviction and the knee-jerk response of calls to reform the law. Some legal commentators have rebutted these suggestions, pointing out that the law is not a shield, but a punishment.
Fladgate partner Lawrence Abramson recently acted for former Indian Premier League chairman Lalit Modi in the first-ever Twitter libel case. Modi lost and had to pay Chris Cairns £90,000 in damages for accusing him of match-fixing without evidence.
Abramson maintains that the capacity to ’publish’ under the terms of defamation is no longer restricted to a handful of newspapers and broadcasters, but is available to anyone with a social media account.
He said: “Traditionally, people take more care over what they write than what they say. With the advent of social media people have got used to emails, texts and now tweets as another way of talking, not writing. But the law treats it all as written.”
Another unsavoury Twitter legal boundary was broken when the name of a rape victim was published and then republished by users unhappy with the conviction and jailing of her attacker, Evans. Police have made 12 arrests so far.
One conclusion is that this will become a boom area for law, creating a legal market similar to the phone-hacking scandal. Wrong, says Abramson, who suggests it could move in the opposite direction.
“The society we’re living in enables issues to go viral instantly and the controls are just not there,” he said. “It’s bigger than the law because you can’t actively police the internet.
“In the Ched Evans case the law on contempt is there and whoever initially put the victim’s name out committed an offence. But so too did everyone who repeated it. Do you prosecute 30,000 people? It’s just not practical or cost-effective.”
He added: “I don’t see how the law is going to prevent this sort of thing. You could increase penalties and publicise punishments, but you’ll always get people who enjoy defying the laws and exposing things they shouldn’t. Once it’s out there, it simply can’t be contained - it’s like a sticking plaster on the hole in the Titanic.
“I suspect it will now go the other way and the challenge for lawyers will be to think less about injunctions and defamation action, and more about reputation management. Clients will begin to realise that you can’t protect against these things through lawyers and instead go on the PR offensive.”