The conviction of two men in the United Kingdom for contempt of court based on material they published on social media sites highlights the need for greater care to be exercised when publishing material online.
In 1993, James Bulger, aged two, was abducted from a shopping centre in Liverpool and murdered by two 10-year-old boys, Robert Thompson and James Venables. The trial that followed made international headlines and, at the time, Thompson and Venables were named, despite the fact that they were under-age offenders. They were both sentenced to life imprisonment.
The terms of their sentence were that they would remain in custody until the age of 18 and thereafter be released on life-long probation. Upon their release in 2001, they were both provided with new identities. In addition, an interdict was issued banning anyone from publishing, broadcasting, depicting or describing any details about the boys or their identities worldwide.
In early 2013, two individuals posted photographs on Facebook and Twitter they alleged were of Venables and Thompson as adults. The photographs were reportedly viewed or shared about 24 000 times.
One of the accused posted on his Facebook profile: “Interesting that this photograph is not allowed to be shown and there is an investigation on how it got out. What is more interesting is why they got released and protected in the first place.” The other accused stated: “I heard about it [the interdict] for a while, but posted it as people are talking about being prosecuted for putting it up and I don’t think it’s right.”
It appears – based on the content of their posts – the two men were engaging in what they believed to be a form of protest against the fact that Thompson and Venables had been provided with new identities.
After being contacted by the authorities, both men removed the photographs and apologised for their conduct. They were, nevertheless, charged with contempt of court and sentenced to nine months’ imprisonment, suspended for 15 months. The judge ruled they had clearly been aware that they were breaching a court order and that their actions had endangered the lives of not only Thompson and Venables, but any person who was mistakenly identified as being one of the two men.
This case is noteworthy because it is the first time that individuals in the UK have been charged with contempt of court in relation to material published on social media. Although hundreds of people shared the same photographs posted by the two men, only the two of them were charged and convicted. One of the reasons provided by the UK authorities for their decision to charge the men was that they wanted to send out a message to the public that breaching court orders on social media has consequences.
The case illustrates that the idea of anonymity and safety in numbers, which often encourages people to breach court orders and other laws online, is dangerous. It is always open to the authorities to decide to take action against offenders who spread unlawful material on social media, even if there are hundreds of other people involved. Therefore, the fact that material has become widely available online should not be seen as a reason to publish that material if one is aware that the publication is unlawful.
The consequences of unlawfully publishing material online should be borne in mind particularly by members of the media who tweet in their personal capacity. Whereas traditionally editorial controls have filtered out unlawful material, Twitter has introduced an unprecedented element of personal control (and personal liability) over the material that is published. This brings with it the need for journalists to familiarise themselves with and keep abreast of what they are not permitted to publish, particularly when it comes to statutory restrictions on reporting and court orders.
A case in point in the South African context is the regular publication of the identities of individuals involved in divorce proceedings. According to a court order issued by the Constitutional Court, no person is permitted to publish the identity of a person involved in divorce proceedings without obtaining the prior permission of the court that is presiding over the divorce proceedings. Although this prohibition has been in place since 2009, it has generally been honoured more in the breach than in the observance. Despite the widespread disregard for the court order, journalists who tweet the names of people involved in divorce proceedings are opening themselves up to contempt proceedings.
Although there is limited case law involving material published on social media in South Africa, our courts will undoubtedly follow a similar path to that adopted by the UK courts in should such prosecutions be initiated in South Africa.