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2 December 2013

Peaches Geldof and Ian Watkins: is social media the end of contempt of court?

Geldof tweeting the names of victims' relatives shows how hard it is to enforce reporting restrictions in the digital age.

By David Banks

It was a confluence of all the worst things that could happen in a trial.

First, it involved one of the most repulsive acts of child abuse one can recall: Ian Watkins, lead singer in the Lostprophets and two female fans who offered up their children to his depraved sexual desires.

Watkins was pictured everywhere in reports of the trial, but his deeds were carefully edited because the details were simply too awful for any mainstream publication or broadcaster to divulge. Reporters livetweeting the trial fell silent, apologising that what they were hearing was just not fit for repetition.

Watkins’s co-defendants though, the women who had so betrayed their own children, remained unnamed to protect those children from future revelations about the depths to which their mothers had descended.

There was a time when such anonymity would not have been necessary for babes in arms, who cannot know what is being written or broadcast about them. But now that archive searches have made what is written online carved in stone, courts take a belt and braces approach and effectively anonymise the guilty to protect the innocent.

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And that might just have worked in the short space of time between newspapers going online and the entire world joining them via Twitter and Facebook. But last week the “we know better” mob took to their social media accounts to make thoughts previously reserved for the dinner table and saloon bar very, very public. This reached a nadir when Peaches Geldof weighed in and named the two women, only removing them and issuing a grudging apology when it was pointed out to her she was committing a criminal offence in doing so.

This was not before her sycophantic following had issued the usual “you go girl” encouragement which reinforces those doing something stupid on social media.

South Wales Police had already taken to their Twitter account to issue warning and appeals in the wake of the trial to try to dissuade users from posting details that might lead to the identification of the children. South Wales police have 29,000 followers on Twitter, Peaches has 168,000. They are sadly outnumbered by a celebrity with more followers than some of the newspapers reporting the trial have readers.

But before we castigate Peaches and others for flouting the law, they could perhaps be forgiven, in their ignorance of child and sex offence legislation, for believing they were permitted to publish these details.

Why, when ignorance of the law is not an excuse? Well, because HM Courts Service had placed the name in the public domain on court lists automatically published online. This resulted in some “discussion” between the courts service and the Crown Prosecution Service on Friday. Oh, to have been a fly on the wall in that discussion.

Did no one, anywhere, anticipate that this case was going to generate some heat on social media? A quick call to the news desks of any of the media covering it would have confirmed that it was going to do just that. Warnings of the restrictions in this case were too little, too late and that will make the job of shielding those children in the future all the more difficult.

Step in the Solicitor General, Oliver Heald, who said last week that contempt law was “fit for the digital age”. the equivalent of a police officer admonishing us for rubbernecking saying: “Nothing to see here, move along please.”

The Twitterhorde in this case had breached the Children and Young Persons Act 1933 and the Sexual Offences Amendment Act 1992. The clue to why I, respectfully, differ from the Solicitor General is there in the titles of the Acts – 1933, 1992. Contempt law was written in 1981.

The courts have been left to shoehorn social media into existing legislation and it is not an easy fit. The courts tend to take the view that Twitter, Facebook and blogs are publication just like the dead-tree press. Anyone who has spent any time on here at all knows that is simply not the case. It is conversational and it is instantaneous. The only media it is equivalent to is the one we started with millennia ago – speech itself, and given the thumb-speed of some young users, it is even quicker than that.

Do Twitter, Facebook and other platforms bear some responsibility in all this? I tend to think not, it is like blaming paper for what gets written upon it. The fact they have the power to remove what is written does not logically place upon them a duty to prevent it being posted in the first place. All over the world sensitive trials take place every day and if we go down the road of expecting internet platforms to police pre-publication we will break the internet.

What is to be done then? Well, criminalising large numbers of people in order to encourage others to stay in line would be one option. But you cannot legislate away stupidity and the lessons learnt by prosecuting now, would not last long as new generations sign up for new versions of social media. You might get the message across to Twitter, but before long a new platform will come along with a new set of users just as blasé about the legal restrictions they might flout.

Prosecutions get a lot of “I told you so” coverage in mainstream media – the very media that those flouting the law increasingly do not use.

The Attorney General’s Office, Crown Prosecution Service, the Courts Service and police need to plant themselves firmly on social media and use it for more than just promoting their press releases.

Engage, watch how social media is reacting to a case and learn to predict when this might happen again.