The Guardian had an interesting piece on their media blog on 26th June 2013 by David Banks. Mr Banks points out that by “this weekend, about 200 people had referred to Forrest’s victim by name on social media“. It seems that some of these people were doing so out of ignorance, some out of spite “but those who decided that because the law did not make sense to them, they would identify the victim anyway“.
We had a look at this issue (and the law behind it) last week (and there is more detail in relation to the Ched Evans case here). The law is clear – naming the victim here, any child where there is a s39 order in place or the victim of a sexual offence, is a criminal offence.
Is the law sufficiently clear?
I have a certain sympathy with those people who were tweeting the victim’s name out of ignorance. Traditionally, ‘ignorance of the law is no excuse’ but in this day and age the law is so complicated and vast that no-one can possibly hope to know it all.
Sometimes it’s clear – stealing is wrong. But here, the ‘reasonable man’ would look at the fact that the name of the victim had not just been circulating on the internet, but had she had been widely named in the media, and officially by the authorities. When faced with that, it is on the face of it surprising that it could be a criminal offence to state something that is so clearly in the public domain.
Less sympathy is due to those who deliberately break the law. The law may be wrong, but you should probably seek to change it rather than flouting it.
Having said all of that, I would suggest that the law is clear. Maybe the way of dealing with an accidental breach is a warning – if the tweeter is told that naming is illegal, and they remove the post, then that is sufficient and no further action can be taken.
Are the current restrictions compliant with Art 10?
We all have the right of freedom of expression, freedom of speech. How does that tie in with these restrictions?
Freedom of speech isn’t absolute. The European Convention on Human Rights has exceptions: “The exercise of these freedoms … may be subject to such … restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”
Here, the exceptions are wide enough to be capable of justifying the infringement of your right to free speech. The key word there is ‘capable’. Whether it does will potentially depend on the circumstances of each case. And remember, the burden is on the Government to show that the restriction on free speech is ‘necessary’ rather than on the individual to show that it’s not.
So – will there be cases where an anonymity order is not compatible with Art 10? I think that the answer is yes (and this may be one such case). I would not suggest that anyone try and put that to the test, but if there are arrests and prosecutions, there are some potentially interesting arguments that the Court court hear.
Should people be prosecuted for this?
In reality, the police are not going to be arresting the thousands of people who have breached the law here. Also, many newspapers are currently in breach of the law here.
There are arguments for changing the law, and arguments for keeping it as it is. I do think that the time has come for a review of the law and a decision made as to if and when these cases should be prosecuted. The CPS recent guidelines on social media prosecutions don’t really give much guidance on these sorts of offences.
What do you do with an unenforceable law?
That is a difficult and interesting question. The short answer is ‘I don’t know’. On the one hand, people shouldn’t be allowed to nullify a law if sufficient people breach it. On the other hand, in a democracy laws are made for the people – if sufficient people withdraw their consent, is that an indication that the law is wrong?
That is a philosophical question that goes much wider that people tweeting names on the internet. What do you think?