Memorial Facebook groups have shared information that could potentially prejudice criminal proceedings and social media users revealed details about defendants' ethnicity, previous convictions or the alleged crime. However, the attorney general, who was told about these examples in response to a call for evidence, says the challenges that social media poses for the administration of justice are 'not unmanageable'.
The Attorney General's Office issued a call for evidence on social media's impact on the criminal justice system after adverse comments were posted beneath articles about a 2015 murder trial involving two teenagers.
Publishing its response document today, the AGO said responses highlighted a lack of public awareness, with social media users often unaware of the law or reporting restrictions. The Crown Prosecution Service identified 'common misapprehensions', such as people believing they could name complainants in sex offence cases if the offender was acquitted.
Media organisations were worried that reporting restrictions to prevent prejudicial social media comments could also prevent legitimate reporting of a trial.
There were also concerns about the legal liability for social media posts. In some trials, the media queried whether they could be made to remove comments made beneath their articles on social media platforms or whether social media companies or users should be responsible for the post.
The AGO acknowledged that the evidence suggests social media has introduced new challenges. However, the challenges were 'not unmanageable'.
Solicitor general Robert Buckland QC MP said he was pleased to hear respondents say the risk was 'relatively minor', which they could mitigate.
For instance, the AGO document states, newspapers or social media users can be asked to remove posts to prevent comments being posted, and the matter can be referred to the attorney general as potential contempt. 'Strong and clear' judicial directions can be issued to the jury to disregard social media comments. In 'extreme' cases, the jury can be discharged and a retrial ordered.
However, Buckland said the government needed to 'guard against any future proliferation of the threat' and warned that social media users 'must think before they post' to avoid being fined or jailed for up to two years.
The AGO said a cross-government online harms white paper, which is still in the works, will address harms that occur on social media platforms. Buckland will work with his public legal education committee on how to safely comment on the administration of justice online. The Judicial Office is working on 'clear, accessible and comprehensive' guidance on contempt. The Independent Press Standards Organisation will be publishing court reporting guidance this year.
Members of the judiciary made up the largest proportion of the 24 respondents. Social media companies did not submit responses but the AGO said it had discussions with Facebook and Twitter. It is working with Facebook, Google and Twitter to address 'contemptuous or otherwise unlawful' social media posts.