The original call for evidence asked for examples of trials being affected by social media commentary and evidence of anonymity orders or reporting restrictions being breached via social media. Social media posts which are in contempt of court or which identify someone subject to an anonymity order are not uncommon. This has the potential to put trials at risk, as it could prejudice parties involved in the case, such as jurors, although cases where this has occurred have so far been rare.

The Solicitor General, Robert Buckland QC MP, explained:

'We launched this call for evidence with the goal of discovering whether the legal process was at risk due to social media, and whether people working in the criminal justice system have the tools they need to manage that risk. I am pleased to say that our respondents reported that this risk is relatively minor, and that they are already confident that they can mitigate the risk where it does arise. We need to guard against any future proliferation of the threat, however.'


Individuals from across the criminal justice system, as well as members of the public, media organisations and academics were consulted and agreed that, although the risk has increased in recent years, social media does not yet pose a serious threat to the criminal justice system.

According to John Binns:

'It is right that we remain vigilant about the potential for social media to prejudice the criminal process--while the cases are rare, they are important and high-profile enough to warrant close attention. Since the case of Ex parte British Broadcasting Corporation and others R v F and another [2016] EWCA Crim 12, [2016] All ER (D) 59 (Apr), we have also seen the rugby rape trial in Northern Ireland, where there were concerns about the naming of a complainant.'

Government response

To address these concerns, a new 'contempt of court' webpage on GOV.UK has been launched to promote the safe use of social media by clearly and accessibly explaining the risks and implications of using social media to undermine the administration of justice

To further mitigate the risk of juries becoming prejudiced, the Judicial Office has begun work to produce new, comprehensive guidance on contempt for jurors. However, members of the judiciary reported that they are confident that they already have access to the tools necessary to mitigate the effects of prejudicial social media posts, although there was some concern about the delay that these can cause to the trial process.

Binns points out that 'there are already powers to impose reporting restrictions and for the police to pursue deliberate breaches'. Nevertheless, Binns admits that 'there is clearly a large element of people commenting and even potential jurors not being aware of the issues involved. The new guidance documents for jurors and others should go some way to addressing that problem'.

'New technology has weaponised language'

Paris Theodorou says:

'It is impossible to totally remove the risk posed by social media on the fairness of proceedings in the criminal justice system. The criminal justice system is simply not responsive enough and does not have the tools to remove comment. Social media users cannot be stopped from discussing matters that they deem to be worthy of observation, and you cannot prosecute them all for having an opinion.

'Although the government response is welcome, more onus needs to be placed on the regulation of social media. The Ofcom of social media is welcome more now than ever before. A dedicated criminal justice team to monitor trigger phrases and words, ie the defendants name in an ongoing trial is required, and soon.

'New technology has weaponised language in a new way, and there is an urgent need to embrace new strategies. We need a regulator that reflects a real world understanding of how social media functions in the lives of users, and vision for an online world where free expression is balanced with the right to a fair trial. This effort must take place within a comprehensive overhaul the impact of social media on the administration of justice, as we recalibrate to the realities of the 21st century.'

Hugh Southey QC agrees:

'The government appears to be confident that current safeguards are broadly adequate. Personally, I would like to see far greater education of the public than is planned. There does appear to be a degree of complacency when the use of social media seems so common in society.'

Originally published by LexisNexis

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