Technology law specialist Luke Scanlon said that the consultation the Law Commission is currently undertaking into how contempt of court laws apply in the context of new media should prompt businesses to audit their social media activities to account for that risk.
In the UK there are two forms of contempt of court. There is statutory contempt of court under the Contempt of Court Act 1981, which criminalises the publication of material which creates a substantial risk that the course of justice in the relevant proceedings would be seriously impeded or prejudiced. There is also common law contempt, which targets any other action which is intended to interfere with the administration of justice, including interfering with pending or imminent court proceedings.
Both statutory and common law contempt of court are concerned with the possibility that a juror, witness or lay judge may be influenced by material which is published about active legal proceedings.
The Law Commission has said that it is "confident" that the current framework covers publication via new media, but admits that case law has yet to develop sufficiently to enable there to be a clear understanding of the precise scope of the law in a new media context.
It has asked respondents to identify whether there is a "problem" caused by the fact that it is currently unclear whether information posted to a restricted audience on the internet, because of the application of restrictive privacy settings on sites such as Facebook for example, falls within the scope of the contempt of court laws.
It has also asked for views on whether the contempt rules on new media postings need to define the concept of 'place of publication' in order to clear up whether material posted online from outside of England and Wales, or whether material posted within England and Wales but targeted at a foreign audience, is within scope of the law.
The Law Commission has proposed a new law on contempt whereby publishers would be required to "temporarily" remove online published articles or blogs that were posted prior to legal proceedings becoming "active". This, it said, would mean that organisations would not be obliged to constantly monitor whether previously published material is subject to a contempt of court action, but it added that it would provide the opportunity for material that could influence a case to be removed if a judge deems it appropriate.
"The judge would only have this power where the publication creates a substantial risk that the course of justice will be impeded or prejudiced," the Commission said in a summary (40-page / 217KB PDF) of its consultation document said. "The judge would also have to specify for how long the report would need to be removed."
"The judge will need to assess how likely it is that a juror will find or see the old publication, and what impact the publication would have on the juror. The judge will also need to assess whether other people might be affected by the old publication being accessible, for example, witnesses might be put off coming forward. These orders ought to be rarely imposed because there will not often be a substantial risk of serious prejudice," it said.
"The advantage of this proposal is that it means that a publisher will only commit this form of contempt if they are subject to a specific court order. That means the media will not have the obligation to monitor their web archives, and will have an obligation to remove only the identified articles for only a short period of time. This protects the media’s right to freedom of expression," the Commission said.
The Law Commission is consulting on whether it is appropriate to apply the current maximum penalty for contempt of two years imprisonment to those that do not adhere to the court orders.
Luke Scanlon said that the application of the contempt of court laws to new media was just one consideration companies should have when forming a social media strategy.
"Firms should think about all the instances where what an individual in their organisation posts on a social media platform could present a risk to either them personally or to the organisation as a whole in terms of both reputation and liability," Scanlon said.
"The Law Commission's consultation on contempt laws is a reminder for companies that they need to analyse new media usage by their staff and stay well-informed of changes in the law to notions of what is meant by publication, when re-publication occurs, to what extent it matters where publication takes place or where servers hosting information are located and the legal consequences of targeting a specific audience by means of a website, whether that be particular countries or sections of society." It really is time for all businesses to conduct a social media audit and think about all the possible consequences that could result from any information disclosed on its behalf or in connection with it online."
"For some market sectors specific social media rules on misleading promotions and ensuring transparency as to the nature of a communication must be taken into account, defamation and communication laws must also be considered, whilst other laws covering intellectual property issues and consumer protection can also be engaged," he said.
Media law specialist, Ian Birdsey added that "inadvertent breaches of confidentiality obligations by individuals including employees, which result from failures to understanding or maintain social media platform privacy settings, are an area of growing concern and increase in frequency of claims against companies."