Lord Levesen said yesterday that the spread of defamatory gossip online using social networks was the “elephant in the room” of the inquiry into phone hacking.

Within 24 hours a YouGov study has been published which concludes that 48% of Twitter users do not consider whether their tweets could be breaking the law before they send them, and only 19% read the terms and conditions of sites.

Perhaps most importantly, only one in ten knew their own legal rights.

The law governing the rights and duties of twitter users pre-dates VCRs, and was written in a time when a newspaper was the primary source of news for the majority of people. No 24 hour news, no mobile phones, no internet, no social media, and most importantly, no means for a lay member of the public to transmit their thoughts to a mass audience. Almost nothing is left of that lost, analogue media world. With one exception.

The Contempt of Court Act 1981 remains the cornerstone of the law applicable to social media, despite being as unfit for purpose as a bow and arrow against chemical attack. Earlier in the year its frailties were so ridiculously exposed over the super injunction farce, in which newspapers were barred from reporting on the existence of and the identities pertaining to a series of newspaper injunctions, whilst those on social media could disseminate the same information widely and without consequence. The farcical anomaly led to the Sunday Herald’s courageous use of the situationism defence, by publishing a prominent picture of Ryan Giggs with his eyes minimally and ludicrously blacked out.



The invention of the internet rendered the Act obsolete in a theoretical technical sense, but the explosion of Facebook and Twitter in the last several years has rendered that obsolescence practical and very, very real.

All those twitter users who openly disseminated the same information (and indeed, more) as the Sunday Herald were as equally in breach of the Contempt of Court Act as any newspaper editor would have been, although action against them would have been utterly impractical, impossible even, given their impenetrable veil of anonymity and absence of accountability.

Their likely ignorance of the legal consequences now established by YouGov is perhaps the most revealing factor. The Contempt of Court Act is so utterly beyond relevance for players in the online world, it can hardly be a surprise it is so easy to ignore. Editors of responsible social media websites adhere to its provisions, but editors make up the tiniest conceivable fraction of the online population, and anyone with the legally protected knowledge can project it around the world without a trained editor’s restraining hand in moments, reaching a potential circulation audience most publications could only dream of. It would be impossible to try to train every twitter user in the subtleties of the Act's provisions. That battle is long since lost. 

The Act has struggled to cope with the evolved media, although its unwieldy provisions are still the only weapon in the armoury of the online defamed. For that reason alone education of the online masses may be a first step, but new tools are required, and this area of law needs urgent reform.