Debates in Parliament, home visits from the police and distressed celebrities have all left tweeters a little unsure as to what is and what is not acceptable by law on Twitter.
The list of those offending and those offended keeps growing with recent high profile reports referring to Louise Mensch, Tom Daley, Guy Adams, Steve Dorkland, Helen Skelton and Kevin Pietersen. This guide discusses 10 legal risks which apply, or potentially apply, to Twitter, in the context of recent media attention given to the lawfulness of tweets.
Number ten: defamatory tweets
Defamation law protects a person's reputation. In England, the law of libel makes it an offence to communicate defamatory remarks where that communication takes some form of permanence (and in Scotland the general law of defamation has the same effect). At least one UK court has given the impression that communications via Twitter have a form of permanence. Defences for truth, honest opinion and providing a public service may apply. However, a claim in libel could result in civil proceedings and claims for damages and costs.
The test: If a tweet lowers a person's standing 'in the estimation of right-thinking members of society' it will breach the law of libel. This may occur where a tweet causes a person to be exposed to 'hatred, ridicule, or contempt', encourages exclusion of that person from society or imputes a lack of professional skill or efficiency.
Number nine: harassing tweets
UK law protects against harassment by means of the Protection from Harassment Act 1997. The legislation provides that "if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment" it is harassment. The UK courts have ruled that this could include the publication of words that cause 'alarm' or 'distress'. Two or more tweets would be necessary for a claim of harassment to be made, as it involves a 'course of conduct'. Harassing tweets could result in a claim for damages for anxiety or financial loss, fines or imprisonment for up to six months.
The test: Tweets which the 'reasonable person' would conclude cause alarm or distress may amount to harassment.
Number eight: malicious tweets
Tweets made within the intention of damaging another's business, goods or services through false statements, or which are reckless with the truth as to another's business, goods or services will offend the law against malicious falsehood. A maliciously false tweet could result in a claim for damages for loss and for further compensation for causing distress and 'hurt feelings.'
The test: False tweets with the intent to injure another's commercial interests, or recklessness as to the truth, will amount to malicious falsehood.
Number seven: menacing tweets
A tweet that is grossly offensive, or of an indecent, obscene or menacing character, will offend the Communications Act 2003. The Crown Court considered Paul Chambers' tweet "... I am blowing the airport sky high" to be menacing, however the High Court overturned its decision. The High Court ruled that the Communications Act would not prevent satirical, iconoclastic, or rude comment, expression of the unpopular, unfashionable opinion about serious or trivial matters, humour, comments that are distasteful or even painful to those subjected to them, silly jokes or jokes in bad taste that a person would be likely to brush aside or empty bombastic or ridiculous banter. A tweet that is indecent, obscene or menacing in character could result in a fine or a prison sentence of up to six months.
The test: If a tweet could create fear or apprehension in the minds of anyone who may reasonably be expected to see it the tweet could be considered a menace and an offence under the Communications Act.
Number six: deceptive tweets (and other misrepresentations)
A tweet containing a false statement that induces another person to act on it may offend laws against deceit and the making of misrepresentations. A duty may also arise for a professional or other skilled person not to make careless tweets. Misleading commercial communications may offend either the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and industry based advertising rules. Untrue tweets in a commercial context can result in damages claims and prison sentences of up to two years.
The test: Is the tweet deceptive in nature or likely to deceive?
Number five: impersonating tweets
The Fraud Act 2006 protects against fraudulent activities. An impersonator who opens a Twitter account could be exposed to a claim for fraud if the person who has been impersonated suffers loss or damage as a result of the impersonation. A claim for fraud can result in criminal charges with a penalty of up to 10 years imprisonment and fines.
The test: Misleading or an untrue representation as to a person's identity on twitter could amount to fraud.