#Guilty? Getting a handle on contempt in tweets

The flurry of e-excitement that followed the weekend posting on Twitter of the names and deeds of celebs supposedly at the centre of recent super-injunctions has raised a number of uncomfortable legal questions.

Leaving aside the inaccuracies contained in much of the material posted, it's apparent that existing laws designed to restrict media coverage of matters that the courts deem should be kept private are missing their target. 

But then what is the target, and what now constitutes 'the media'?

A breach of a court order, such as an injunction, constitutes a contempt of court - a criminal offence even if the court order in question was made by a civil court.

The publisher of the information faces the risk of prosecution. And publishers - traditionally mainstream media organisations - are well aware of the risk and on the whole compliant.

But who is the publisher of a tweet?

Twitter itself would no doubt deny being a publisher, but merely a vehicle by which users can convey their thoughts to others. However, that argument has never been tested in the UK courts. 

If Twitter were a Europe-based company, it would most likely find succour in the European E-Commerce Directive which the UK adopted in 2002. 

Included in its provisions are clauses which, with some conditions, give protection from prosecution to online companies which merely act as a conduit or hosting service for the material of others. Social media was not part of the landscape in 2002 and the regulations had search engines and web hosting sites more in mind, but I suspect Twitter would argue that it also comes into this category.

However, these regulations only apply to companies based in the European Economic Area (EU member countries plus a handful of other states). Even though British users have adopted Twitter as their own, it remains a US-based operation with, reportedly, no physical, commercial presence in Europe.

In theory, a UK court could make an order demanding Twitter removes the material concerned, but how that order would be served and what effect it would have is open to question. 

Last year, the US passed legislation to protect its citizens from judgments in the UK libel courts, and I suspect it would not look kindly upon any further attempt to interfere in its domestic life.

So that leaves the original poster of the material in the judicial firing line - if they can be traced.

Anyone who is even marginally web-savvy would take steps to cover their tracks as the source of such material, not just in their anonymity but in the technical trail by which they could be identified. Again, any such tracing would require the co-operation and compliance of Twitter as a starting point - something that cannot be guaranteed from a company in a foreign legal jurisdiction.

So what happens now?

No doubt some tabloid editors are waiting for the right moment to return to court and argue that the material at the centre of one or more of the original injunctions is now so generally accessible to the public that it can no longer be considered confidential. It will be interesting to see how the courts respond.

It is also worth watching what legal advice is given to those who have been incorrectly named in these latest posts. The Master of the Rolls, Lord Neuberger, has set up a committee to look at the whole issue of super-injunctions. Hopefully its remit will extend to examining the impact of tweets, blogs and other forms of non-mainstream publishing in this area. In the meantime, we might see a reduction in the number of celebs making for the High Court, fearing that in doing so they run the risk of being unmasked on the web.

However, you won't read it here first - we're upstanding, law-abiding folk at the College of Journalism...

Kevin Steele is the senior legal trainer at the BBC College of Journalism.