2011 was the year that the “super injunction” hit the headlines and the rumour-mill was in overdrive as to which celebrities had used the law to prevent private indiscretions from becoming public scandals. Pre-Twitter, the effect of such injunctions would have been to bar anyone, particularly the press, from reporting the details protected by the injunction and also from revealing that the injunction itself existed.
Anthony Field and Kathryn Griffin, of Rosenblatt Solicitors, look at the rise of social media and the implications it has had on the legal world
However, since the emergence of Twitter and other social media networks, which offer their users the opportunity to communicate with the world with almost absolute anonymity, the law and the enforceability of laws have been challenged. A particularly well publicised example of the flagrant breach of a “super injunction” was the case of an affair between a British Premiership footballer and Imogen Thomas, a Welsh model. Twitter user @injunctionsuper revealed to the world at large the name of the British footballer who had taken out the injunction.
This revelation was followed by a Scottish newspaper and a member of parliament seeking to hide behind parliamentary privilege. As a result, the individual named by @injunctionsuper threatened to sue Twitter. A potential anomaly has therefore been created; the English press remains bound by the terms of an order from the English Court whereas, the very same information gagged by the injunction is able to be get into the public domain through social media sites such as Twitter .
Whilst the use of social media sites clearly has many advantages, it comes with a big sign saying, “User beware”. The apparent anonymity of live media often leads its users to feel untouchable to the usual legal parameters. This is evident from the huge volume of potentially defamatory statements and even the breach of court orders. Such flouting of laws has not gone unnoticed and are the subject of legal proceedings.
The “super injunction” received vast press coverage throughout 2011 and much criticism by those who believe that it is a simply a tool to protect the rich and famous. The social media phenomenon means that rumours, information and comments, whether truthful or not, are now available for the world to see immediately.
Social media networks are more than just a tool used by a few individuals to disclose salacious private details of celebrities. The explosive growth of social media, added to the continued growth of the Internet, have effected a shift from “push media” to “pull media”. The public is no longer satisfied by receiving information and instead now has the tools at its fingertips to seek out the information it wants, whether this be comments on cases or vacation scheme information. LinkedIn is already established as a business networking site while Facebook, originally intended for social use, is now regarded as a major commercial tool for businesses to engage with their customers. But it is Twitter’s simple concept that makes it ideal for disseminating news quickly and easily, as we have already seen in political and media circles, and now increasingly in legal circles. Many law firms have already joined the Twitterati, regularly commenting on points of legal interest.
In the light of the recent Court guidance about the use of Twitter, texting and emailing in court, which allows for the reporting of some court proceedings by journalists it seems quite plausible that, in time, the courts will extend the current rules on reporting live from court to allow lawyers to use live social media forums. But, even with the court’s permission, will this be appropriate? The use of social media for business purposes, particularly for lawyers, comes with a very serious health warning; social media sites are predominantly public forums and so there is always the danger of attracting bad publicity or highly publicised complaints. Moreover, lawyers should always bear in mind their overriding duties to their clients and their code of conduct. Fundamentally, the use of social media by lawyers will almost certainly increase. Firms launching themselves into the Twitter-sphere will need a robust social media policy to ensure staff are fully aware of the parameters of their actions.
The courts have also recognised the relevance of these sites within the modern society. Notably, an Australian lawyer recently sent a foreclosure notice via Facebook, and since then the UK Courts have grown more lenient in adopting this form of service which means that cases keep progressing. But again, this adopted and unanticipated use of social media sites does not come without opposition. Many countries, including the US, are already concerned about the lack of protection in relation to users’ data, and it is expected that serving notices by this method is likely to provoke privacy complaint. Others have argued that as court documents are already public there is no basis to claim breach of privacy. The court’s approval of this method means that persons who are otherwise physically untraceable can be located on social media sites, and it seems logical that these tools are used to serve legal papers. The English Court has already given permission for proceedings to be served on a Defendant via Facebook and this could be a future trend for alternative service.
What is clear from the Courts, businesses and individuals alike is that social networking sites have become an integral part of our communication. Whilst it is necessary for businesses and the courts to ensure that there are safeguards in place, careful use of this media will help firms to boost their marketing to a previously untapped audience and to communicate with others on a mass scale on subjects of mutual interest.
Anthony Field is a partner in Rosenblatt’s dispute resolution group. Kathryn Griffin is a lawyer at Rosenblatt.