Twitter launch ‘report tweet’ function

Twitter has introduced a new ‘report tweet’ function across all of its platforms to enable users to report abusive tweets.

The move has been hailed by campaigners who called for social network websites to take action against threatening and abusive users. As noted in our earlier blog post, ‘report abuse’ buttons and similar functions can have limited effect in stopping internet trolls. But this is a step forward in terms of social network websites taking some responsibility for preventing their platforms being used for abusive purposes.

‘Anything you tweet may be given in evidence’

There are stories in the news today warning social network users that their tweets and other messages could be used as evidence against them in court cases.

The issue came to the attention of the press after US teenager, Cody Hall, had a manslaughter charge upgraded to murder as a result of boasts about speeding he put on Twitter months earlier. The tweets including “Live fast die young” and “come on a death ride with me” lead prosecutors in California to increase the charge against him from manslaughter to murder and to revoke his bail following his arrest for knocking over and killing cyclist Diana Hersevoort whilst driving in Dublin, California.

Whilst the story might be surprising to some, there has not been a recent change in the law. It has always been the case in the UK that things said on social media can be seen by the police and Crown Prosecution Service (CPS) and used in court.

Earlier this year, the police passed a file to the CPS for investigation after tweets by trainee accountant Emma Way stating “Definitely knocked a cyclist off his bike earlier. I have right of way – he doesn’t even pay road tax!” were forwarded to the police by other Twitter users. It also seems likely the Facebook profile of Francisco Jose Garzon Amo, the driver of the speeding train that derailed in Spain last month killing 79 people, will be used as evidence against him after he allegedly posted a picture of a train speedometer at 200km/h (124mph), writing: “I’m at the limit and I can’t go any faster or they will give me a fine.”

It is not just post about crimes which social network users should be concerned about, earlier this year a tweet published by Sally Bercow about Tory peer Lord McAlpine was found by the High Court to be libellous. Mrs Bercow, the wife of Commons Speaker John Bercow tweeted “Why is Lord McAlpine trending *innocent face*”, two days after BBC Newsnight wrongly linked a “leading Conservative politician” to sex abuse claims. Following the ruling, a damages settlement was agreed for an undisclosed amount.

The message for social network users is clear; do not think that because you say something on Twitter or Facebook that it cannot be used against you in court. Remember that unlike a private conversation with a friend, posts on social networks can be viewed almost instantly by people all around the world. Only post comments which you are comfortable sharing publically with others.

What can be done to stop internet trolls?

With recent headlines about feminist Caroline Criado-Perez being bombarded with violent and misogynistic tweets and 14-year old Hannah Smith who committed suicide after being taunted on social networking site Ask. fm, questions about being asked about what can be done to stop internet trolls?

Twitter, Facebook and other social networking sites have rules for using their service which are signed up to by users as part of the account registration process. The sites also have processes in place to enable users to report abuse either via a report abuse button or an online form. However, even where abuse is reported, the ability of the social networking sites to put a stop such abuse is limited. Their key sanction is usually to suspend the user’s account but determined trolls can often run multiple accounts at one time or will open another fake account almost immediately after their access is suspended.

Twitter’s Abusive Behaviour Policy encourages users to share their views but discourages targeted abuse and harassment stating that “Twitter is a platform that provides a global communication service which encompasses a variety of users with different voices, ideas and perspectives. As a policy, we do not mediate content or intervene in disputes between users. However, targeted abuse or harassment may constitute a violation of the Twitter Rules”. The policy goes on to say that “Users are allowed to post content, including potentially inflammatory content, provided they do not violate the Twitter Terms of Service and Rules.”

The Twitter Rules expressly forbid certain posts stating:

  • “You may not publish or post direct, specific threats of violence against others” and
  • “You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.”

In certain circumstances, violent or threating tweets can also be brought to the attention of the police. However, there can be practical difficulties in finding trolls as they can often access social networks using a number of different fake accounts and public computers. Even when trolls can be identified, the police have limited powers to prosecute. The key offence which can be committed by trolls is under the Communications Act 2003:

  • Section 127(1)(a) of the Communications Act 2003 provides that a person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
  • Section 127(3) of the Communications Act provides that a person guilty of an offence under section 127 is liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

Keir Starmer QC the Director of Public Prosecutions recently published guidelines for prosecutors who are taking on cases involving communications sent via Twitter and other social networks. The guidelines provide that prosecutions should be sought where there is a credible threat of violence, a targeted campaign of harassment against an individual or a breach of court orders, but provide that a high threshold must be applied whether deciding whether communications are grossly offensive.

The guidelines call for prosecutors to recognise the right to freedom of expression and provide that prosecution should only be brought when the communication is “more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it”.

In addition to the steps taken by the police and social networking sites to stop internet trolls, employers and schools could also help to limit trolling by making the use of school/work computers for offensive purposes a breach of the school/employment policies which could lead to suspension or sacking.  Education can also play a part and peer pressure from other social network users could help to reduce the prevalence of trolling. Unfortunately, without better mechanisms for identifying internet trolls and stricter sanctions for those who are caught, it seems likely that trolling is set to continue for the foreseeable future.  

Rihanna successful in Topshop t-shirt claim

Pop star Rihanna has successfully sued Topshop for passing off for selling t-shirts featuring her image without her consent.

In the UK (unlike the US) celebrities have no specific right to their own image. Instead they have to rely on the law of passing off to help them protect their image. In the case (Robyn Rihanna Fenty & Others v Arcadia), lawyers for Rihanna claimed that she had established a reputation in the UK and that the unauthorised use of her image had lead the general public to believe that the t-shirts were endorsed by her which had caused damage to her brand.

Lawyers acting for Topshop denied that there had been any misrepresentation and claimed that Rihanna’s team were attempting to assert the concept of ‘image rights’ in the UK noting that her lawyers had spent a long time during the case cross-examining witnesses in relation to image rather than focusing on the fundamental elements for a passing off claim.

In the High Court judgement, Mr Justice ruled in Rihanna’s favour finding that “a substantial number of purchasers are likely to be deceived into buying the t-shirt because of a false belief that it has been authorised by Rihanna herself“.

The case was definitely decided on its facts. Weight was put on the fact that Topshop had previously been involved with celebrity endorsements (such as its collaboration with Kate Moss) and Rihanna’s contract with River Island (a competitor of Topshop) was also an important factor. The judge stated that “To someone who knew Rihanna but did not know her current work, the image is simply one of the person concerned. However to her fans who knew her work, I think this particular image might be well thought to be part of her marketing campaign for that project”. Referring to the t-shirt, he also commented that “The fact it is on sale in a high street retailer is neutral. The fact the high street retailer is Topshop is not neutral. The links between Topshop and famous stars in general, and more importantly the links to Rihanna in particular, will enhance the likelihood in the purchaser’s mind that this garment has been authorised by her”.

The decision does not mean that every unauthorised use of a celebrity’s image will give right to a successful passing off claim. The judge stated that “the mere sale by a trader of a t-shirt bearing an image of a famous person is not an act of passing off” and he made it clear that his decision did not establish an ‘image right’ in the UK or extend the existing laws on privacy. His decision was based solely on the three elements for a successful passing off action: goodwill, misrepresentation and resulting damage. However, the case does illustrate the need for retailers to be cautious when using images of celebrities on products in order to avoid confusing customers and opening themselves up to passing off claims.