‘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.

Exciting news

Two of Kent’s best-known law firms – Cripps Harries Hall and Vertex Law are merging at the end of September 2013. Cripps Logo

The combined strength of the two firms creates a major new law firm, with 45 partners and 260 staff and an enhanced joint client offering across core areas.

With Cripps’ office in Tunbridge Wells and Vertex’s office Vertex logocloser to the centre of Kent, in Kings Hill, the combined firm will have a strong position in the Kent legal market and an increased reach across London and the South East.

For more details, click here.

The Advertising Standards Authority’s ‘Big 5’

Copyright - Advertising Standards Agency

Copyright – Advertising Standards Authority

The Advertising Standards Authority (ASA) has published its 2012 Annual Report outlining its activities over the past year and its focus going forward.

At the heart of the report, the ASA sets out the ‘Big 5’ priorities on which it intends to focus over the coming year, all of which concern misleading advertising in one form or another. The focus on misleading advertising is not surprising given that approximately 70% of all the cases which the ASA dealt with in 2012 concerned misleading advertising.

The ‘Big 5’ concerns are:

1. Free trials

Many online businesses are picking up on the practice of luring customers into signing up to a (usually one month) free trial which, if the customer does not cancel, automatically becomes a monthly service.

ASA made it clear that they are alert to this practice, however, they did not say what action they are taking against it. Their recommendation is for consumers to read all small print carefully before handing over payment. Therefore, businesses should be weary when employing this type of sales technique and note that it is best practice to clearly bring your terms and conditions of sale to the buyer’s attention prior to them signing up to the free trial.

2. Daily deals

Daily deal websites are becoming more and more popular amongst the last-minute shopper. Websites and apps such as Groupon all offer last-minute deals to the impulsive shopper. However, ASA has reported that there are “widespread problems” such as:

• failing to conduct promotions fairly;

• not making clear significant terms and conditions;

• failing to provide evidence that offers were available; and

• making exaggerated savings claims.

ASA explains in its report that it has advised businesses on improving their internal processes and that it has received fewer complaints as a result. It would therefore be wise for businesses seeking to use daily deals as part of a marketing campaign to take note of the problems the ASA has highlighted above.

3. Misleading pricing

ASA has picked up on the selling of products using techniques such as ‘bait-pricing’, ‘drip-pricing’ and ‘partition pricing’ structures where subsequent charges are added to the original advertised price at later stages of the transaction.

An example they provide is the hotel that doesn’t include VAT in its room price. This is an obvious additional costs that is payable by all consumers.

Therefore, businesses are advised to be careful when using these methods as the ASA is making it clear that it will be monitoring them closely.

4. Misleading testimonials

ASA has requested that companies provide proof that the testimonials posted on their websites are genuine. Therefore, it is good practice to retain documentary evidence in relation to the source of any testimonials posted on your website.

Also considered misleading by ASA were the tweets of Wayne Rooney and Jack Wilshere:

The tweet from Wayne Rooney stated “My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount”.

The tweet from Jack Wilshere stated “In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/makeitcount”.

They held that these were misleading insofar as readers were misled into believing that the tweets were from the footballers and not sponsored tweets and that there was nothing obvious in the tweets to indicate that they were Nike marketing communications. ASA indicated that by using #ad in the post the tweets would not have breached the Committee of Advertising Practice (CAP) Code.

5. Misleading health claims

If you are marketing a health product the ASA has made it clear that you must have evidence to back up any health improvement claims that you suggest the product features.

Handle with care…

The use of some of these advertising techniques is clearly of interest to businesses and marketers looking to advertise in fresh and different ways. The key for businesses to be sure that any such advertising is fair and honest and does not mislead the customer. The ASA is clearly keeping a watchful eye on these 5 areas of concern and therefore it is prudent for businesses to err on the side of caution when implementing any such marketing tools.

Top 10 Tips for Protecting Your Database

Top 10 TipsAlmost all businesses will have some sort of database that contains, for example, marketing, sales, or customer data. Most companies appreciate that this information needs to be protected from competitors, but in our experience most businesses could do more to protect their confidential information. My colleague Tom Bourne has set out his Top ten tips for protecting your database.

Excluding the foreseeable

Image; Dwight Burdette (wikimedia commons)

Image; Dwight Burdette (wikimedia commons)

The Court of Appeal’s recent decision in John Grimes Partnership Limited v Gubbins [2013] EWCA Civ 37 has made it clear that if a contacting party can reasonably envisage a particular type of loss occurring as a result of their actions, they could be held liable for that loss.

In the case, the Court of Appeal held that an engineer who caused a delay in completion of a development project was liable for damages caused by a fall in the market value of the property.

The facts

Mr Gubbins engaged John Grimes Partnership Ltd (JGP), a consultant engineer, to design and complete a road and drainage system by March 2007 on land acquired for residential development purposes.

In contravention of an expressly agreed deadline, the works remained incomplete at the end of March 2007. Mr Gubbins subsequently engaged another consultant engineer in April 2008 who re-designed the road and drainage system, gaining quick local authority approval.

In the interim, JGP commenced proceedings against Mr Gubbins for unpaid fees of £2,893 and Mr Gubbins counterclaimed for £20,000 in respect of the defective, unfinished works and the breach of the expressly agreed deadline, claiming that as a result there had been a reduction in the market value of the private residential units, a reduction in the offer from a Housing Association for the affordable units and an increase in building costs.

At trial the High Court found in favour of Mr Gubbins and JGP appealed on the basis that its responsibilities under the contract did not include a duty to protect Mr Gubbins against losses due to a fall in the market value of property.

Court of Appeal decision

Dismissing the appeal, the Court of Appeal held that, although in some cases it may be found that a party to a contract had not taken on responsibility for a particular liability (even if that liability was reasonably foreseeable), the general position is that a contracting party will be liable for all losses arising naturally, according to the normal course of things, from the breach of contract and all losses which may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, as a probable result of the breach.

On the basis of the particular facts, the Court of Appeal held that JGP knew that Mr Gubbins intended to use the land for development purposes and knew that there was a risk that there could be a fall in the market value of the property if the works were not completed on time. Accordingly, JGP was liable to Mr Gubbins for the losses suffered even though such losses were not within JGP’s control and far exceeded the £15,000 fee payable to JGP under the contract.

Lessons to learn

The case demonstrates that the principle of foreseeability of loss still remains the standard mechanism for assessing remoteness of damage.

Unless a party could not possibly be taken to envisage responsibility for a particular type of loss or there are some other special circumstances which render the implied assumption of responsibility inappropriate for a particular type of loss, it is prudent to expressly exclude liability for particular events by including suitable exclusion clauses and limitation clauses in the contract.