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Social media in court: your tweets could be used as evidence against you

· social media,privacy

As we increasingly use social media platforms such as Facebook, Twitter, Instagram and WhatsApp to communicate with each other, many of us are unaware of the ways in which our posts might later resurface – and get us into trouble with the law.

There are numerous examples of social media being used as evidence in the criminal justice system, leading to convictions and sometimes prison sentences. Peter Nunn from Bristol, England, was imprisoned in 2014 after MP Stella Creasy and feminist Caroline Criado-Perez were subjected to a string of abuse on Twitter. And after the London riots of 2011, two men were imprisoned for incitement after posting messages on Facebook inviting those who read them to meet the next day and wreak havoc in their local town. Police were able to trace the messages back to the defendants, leading to successful prosecutions. 

Messages and media on WhatsApp, Snapchat and the like, have been used in evidence to show that defendants have committed offences, such as selling drugspossession of firearms(as in the case of R v Noble and Johnson, where WhatsApp messages from a girlfriend of a defendant were admitted into evidence as they suggested that he had a firearm), harassment, or serious assaults.

In 2015, Portsmouth Magistrates’ Court heard that Alan Wilson of Hilsea had sent his ex-partner 143 abusive messages via WhatsApp. These were used in evidence against him.

It is important to realise that where social media messages are retrieved and show that a criminal offence has occurred they can either be cited as direct evidence of a crime being committed, or as circumstantial evidence – for example, a fingerprint identified from a photo of a man’s palm on a WhatsApp message helped convict a drug dealer in April 2018. Even where messages contain elements of hearsay, it is open for the court to decide whether to admit such messages at trial.

Not criminal, but defamatory?

Even where criminal consequences do not follow, lurking behind the scenes is the possible threat of defamation cases. In 2017 Monroe v Hopkins – a libel action brought by writer and food blogger Jack Monroe against the Daily Mail columnist Katie Hopkins – Mr Justice Warby, sitting in the High Court, warned that even where “a person can have a low opinion of another … the other’s reputation can still be harmed by a fresh defamatory allegation”.

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