Ignorance is no defence, but given that Starmer suggested that a leading QC hadn’t thought about the sophistication of the issues (a charge which the lawyer in question is robustly defending – on Twitter, of course), what hope for the public at large?

I’ve been interested in the idea of public legal education (PLE) for social media users for a while (see my blogger project in 2010, for example) – initially around civil law (defamation, privacy, contempt) and more recently, criminal offences (Malicious Communications Act 1988; Communications Act 2003; Contempt of Court Act 1981).

The court order issue, mentioned on Radio 4 this morning, is the really interesting one for me. In 2010, I wrote about the lack of clarity around blogging and reporting restrictions; the situation hasn’t much improved since then, although people are probably more aware of the risks through increased media discussion.

Jon Harman (@colmmu) is also interested in this area, and has posted some quick thoughts on his Tumblr blog:

On one hand whilst “ignorance” is not a defence, do we have an education system currently capable of raising digital literacy and the laws that relate to it, do we need to do more in public legal education or even state education given that most people do not actively seek to break these laws, they are just unaware? When we had restricted systems of publishing we had mechanisms to filter and check, we had the basis of journalism training wedded to media and publishing laws – but that’s not possible in this new landscape

His suggestion? A legal Siri … Read in full here.

“…judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”

This has been well-documented and discussed by magistrate Trevor Coultart, Lucy Reed at Pink Tape, LegalCheek, the UK Human Rights Blog, NearlyLegal, ObiterJ and dozens of blog commenters and tweeters. The anonymous author of the Magistrate’s Blog, continues to reserve judgement. A WDTK user, Ben Liddicott, has submitted an FoI about the guidance here.

I  wondered what had prompted the guidance and contacted the judiciary press office with some questions (listed below). They directed me to the published guidance [PDF] and gave a little more detail although not any specific examples.

According to a spokesman for the Judicial Office,

“The guidance was issued because judges were concerned about the use of blogs by judicial office holders (both judges and magistrates).

“It is not appropriate to provide examples in response to the specific questions beyond the guidance itself; each judge/magistrate should use his or her own judgement.

“The guidance was agreed by the Magistrates Liaison Group: chaired by the Deputy Senior Presiding Judge (Lord Justice Gross)  and attended by the Chief Magistrate,  the Magistrates Association and the National Bench Chairs Forum.”

My questions

• Does the guidance mean a member of the judiciary can publish online under their real name but must not state their position (even if this information can be found online?). If so, what type of issues are they permitted to comment or report on (procedural issues, legal developments, for example) ?

• What about material published by an individual prior to becoming a member of the judiciary, which can still be accessed online? Are they required to remove it once in office?

• What was the particular impetus for the introduction of this guidance and what specific considerations (about the balance between the risks and freedom of expression, for example) were made?

Further reading on “extra-judicial” activity:

• ‘Judicial Perspectives on Open Justice & Security‘, Lawrence McNamara, in Justice Wide Open. June 2012.

• ‘Lord Neuberger’s seven principles empower judges to speak‘, Guardian.co.uk, Lawrence McNamara, March 2012.

• Holdsworth Club 2012 Presidential Address: Where angels fear to tread, Speech by Lord Neuberger of Abbotsbury, Master of The Rolls. March 2012.

Guidance

This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

August 2012, www.judiciary.gov.uk

This site content is free to all readers but please consider making a donation to Meeja Law’s chosen charity, the Big Issue Foundation, at this link. I don’t know if anyone will, but it’s there as an option. A few donations would give me added incentive to keep going in the autumn!

Oh, and Meeja Law has been going for nearly a year – the first post was on 26 August 2010.

Phone hacking

• Guardian>> Phone hacking: Glenn Mulcaire sues News of the World publisher
• David Allen Green>> Mulcaire suing News Corporation
• Inforrm>>News: Phone Hacking – Commons Committee publishes evidence that “phone hacking was widely discussed” [Updated]
• Press Gazette>>James Murdoch testimony to MPs ‘very misleading’
• BBC News>> Phone hacking: Murdochs savaged by Harbottle
• Press Gazette>> Alastair Morgan: ‘Journalists have been stepping over Daniel’s body to look at behavioural aspects of Rupert Murdoch’s organisations’
• Press Gazette>>James Murdoch insists he didn’t see ‘For Neville’ email
• Media Guardian>>For all you need to know about Rupert Murdoch, look at his lawyers | John DeanPhone hacking: all in this together | Editorial | Comment is free | The Guardian
• Journalism.co.uk>> Is the public interest a valid defence for phone hacking?

Media ethics

• Tabloid Watch>> Richard Desmond, the Daily Star and Big Brother
• Out-Law.com>>Complaints body to investigate alleged police media-informer

Privacy

• Inforrm>>Equality and Human Rights Commission Report: Information Privacy Laws are Flawed
• Out-Law.com>>UK privacy laws are fundamentally flawed, report says
• Out-Law.com>>ICO reasonably assured by Google privacy changes
• RPC Privacy>> Guardian beefs up its privacy code
• The Register>> Google told to delete people from search results

Injunctions

• Inforrm>>Master of the Rolls’ Privacy Injunction Guidance – Amber Melville-Brown
• Guardian Law>>Case law on injunctions is still the preserve of the few | Judith Townend

Copyright

• Out-Law.com>>BBC sets out social network picture use policy
• BBC – The Editors>> Use of photographs from social media in our output
• Pigs on the Wing>> The BBC’s fundamental misunderstanding of copyright
• Out-Law.com>>Newzbin2 ruling sets precedent for online copyright infringement
• Media Guardian>>Gunning for the copyright reformers
• paidContent:UK>> Pot Calling Kettle Black? Mail Rumbled Over Unauthorised Photo Use
• Wonderland Blog>> Daily Mail’s use of photographs without permission
• OJB>> When will we stop saying “Pictures from Twitter” and “Video from YouTube”?
• OJB>> Why we need open courts data – and newspapers need to improve too

Defamation

• Tabloid Watch>> Mirror apologies and pays damages to Martin O’Neill
• Times Higher Education>> Critical path: how did a book reviewer and an author end up in court?
• Poynter>> What journalists need to know about libelous tweets

Riots

• Out-Law.com>>Social media information helped prevent some riot damage, police say
• BBC News>> Web ban for teens accused of Facebook ‘riot’ page
• HTFP>> Reporting on those responsible for riots will be restricted
• UK Human Rights Blog>> Will publishing photos of alleged rioters infringe their human rights?
• Index on Censorship>> Four-year jail terms for Facebook riot posts
• Index on Censorship>> Blocking mobile networks to quash protest? Already a reality in the US
• Jack of Kent>>Jack’s Diary – 15 August 2011: Riots, Without Prejudice, and Privacy
• HTFP>> Journalists were misinformed over shooting
• Index on Censorship>> On the Record
• Index on Censorship>> Edinburgh “riot” play censored
• IPMediaLaw>>Riot Act – Social Media, Its Role In The Riots And Where We Go From Here
• Index on Censorship>> Reaction to Cameron’s plans for social media crackdown
• Index on Censorship>> Index on Censorship reaction to David Cameron comments on social media
• Charlie Beckett>>The social media pleasure of a riot
• Guardian>>The UK riots and language: ‘rioter’, ‘protester’ or ‘scum’?
• Media Guardian>>Will alleged rioters get a fair trial? | David Banks
• Index on Censorship>> BlackBerry Messenger and the law
• Media Guardian>>Reporting the UK riots: what are journalists’ rights?

Press regulation

• Press Gazette>>Abell: ‘The PCC is going to change considerably’
• Media Guardian>>PCC, and editors, aim to save press self-regulation with new protocols
• HTFP>> Press regulation comes under conference spotlight

Digital open justice

• Inforrm>>Access to Law Online: Ten of the best free resources – Judith Townend
• Out-Law.com>>Online security key to proposed public data hub, Cabinet Office says
• The Economist>> Cameras in court: Murder, she watched
• Journalism.co.uk>> Landmark ruling allows ‘real time’ Court of Protection reporting

Got a question?

In the autumn, Meeja Law plans to run a series of ‘Media law surgery’ posts and will put online writers’ legal questions to various experts. If you’ve got a question, please leave it in the comments here, or drop a line tojt.townend@gmail.com.

Want to contribute to Meeja Law?

Meeja Law would love to host guest articles by journalists / lawyers / students – or anyone with an interest in media law and ethics. If you’re interested please get in touch.

Promotion: IBC Legal media law events

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6 October 2011, London: IBC Legal’s 5th social media conference, navigating the legal challenges of exploiting social media and user-generated content. Speakers include: Luc Delany, European Policy Director, Facebook; Gillian Phillips, Director of Editorial Legal Service, Guardian News & Media; Jaron Lewis, Partner & Head of Media, Reynolds Porter Chamberlain LLP
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You can find a full stream of aggregated media law news via @medialawUK on Twitter; and Meeja Law tweets go out via @meejalaw. Please contact me via @jtownend or jt.townend [at] gmail.com with ideas, tips and event notifications. Relevant journalism and law events here: https://meejalaw.com/events/.

“Dear social networks, if you change privacy settings, please ask us to opt *in*, not opt *out*,” a colleague and I pleaded in a blog post written last May. “Social networks should NEVER set the default option to share users’ information,” we argued.

Our concern was about the way social networks, including Facebook, Twitter, Friendster and Google, stored and used members’ personal address book data.

For journalists, we concluded, the ‘links’ and ‘recommendations’ created by this data use could potentially destroy or expose relationships with confidential sources.

You can read more about our address importing research at these links:

• Journalism.co.uk >> How social networks are using your email address book data – and what it means for journalists

• Journalism.co.uk Editors’ Blog >> It’s time for social networks to tell us how our data is used

• Journalism.co.uk Editors’ Blog >> #snprivacy: Journalists’ privacy plea to social networks

• Journalism.co.uk Editors’ Blog >> Will Google use email contact lists to build a new social network?

We were worried about social networks’ lack of understanding and in some cases, lack of engagement with us.

And now, four months on from our investigation into address book importing, the ‘opt in’ issue has reared its troublesome head again, with the introduction of Facebook Places.

It was a case of online deja vu when I spotted this Twitter comment made by blogger and author Zoe Margolis:

@girlonetrack – I’m so sick of Facebook making users opt-out from, rather than opt-in to, the site’s settings. FULL privacy should be the DEFAULT. #FBPlaces

There are parallels with the address book importing issue. Once again, users are able to share an individual’s personal information, without that individual’s consent.

Any location based service has privacy issues for journalists who need to protect their whereabouts and activity.

UK users can already see their Places privacy settings, but so far it has only been rolled out as a feature in the US.

Fortunately for us Brits, TechCrunch has provided a detailed description of how the settings work for US users in three sets of circumstances.

Facebook says it is ‘opt-in’ but TechCrunch’s account contradicts that. Jason Kincaid reports:

Earlier today we had a bit of a fire-drill at TechCrunch Headquarters. As I checked into TCHQ on Facebook Places, I also tagged a few of my coworkers, fully expecting their checkins to be delayed until they actually opted into the feature for the first time (unlike some of Facebook’s past controversial feature launches, you have to Opt-In before you can be tagged in Places).

Except, as we quickly discovered, you really don’t have to opt in before you can be tagged. As soon as I checked in on Places, Facebook published News Feed items to my friends indicating that I’d checked in with my coworkers — even the coworkers who hadn’t yet opted into Places. My coworker received an email asking him to confirm the tag, but he had never clicked it. And yet, many of his friends were being notified that he’d just checked into Techcrunch HQ with me.

On the basis of TechCrunch’s findings, another of its writers re-graded the service from ‘B’ to ‘C-’.

In my previous dealings with Facebook, I have found them extremely responsive (whereas press enquiries to Twitter went unanswered) and the social network’s PR representative, Sophy Silver, is engaging with users about Facebook Places on Twitter.

“Just wanted to confirm you knew this was an optional feature? you can only be tagged if you opt in,” she tweeted, for example.

But I don’t understand her claim that “Places is an opt-in feature”, given TechCrunch’s report that even without opting in you can be tagged in place updates that appear in mutual friends’ news feeds, even if not on the ‘place’ page itself.

I’m also a little uncomfortable with the insinuation of another of Sophy’s tweets:

If you don’t trust your friends it is simple to turn off. For most there is a lot of value in being able to share an experience with friends

It’s not about whether or not you trust the people you know, it’s about the basic principle of keeping certain information offline for your security and peace of mind.

If an individual does not want to share geographical information about their activities, they should be able to make that choice. And your closest friends might have very different notions of privacy and safety.

I’ve asked Sophy to explain the ‘opt-in’ issue and I’ll update when I get some more information back.

I’ve added a new challenge to the Help Me Investigate group that sparked off the whole ‘opt-in’ investigation. You can join it at this link.

Update: Sophy tweeted me this:

No you have to actively opt-in to use Places. once you do default setting is Friends Only but can be changed to wider

But that doesn’t explain the confusion TechCrunch has identified.

Further reading

• Gawker: The First Thing You Should Do With Facebook Places: Don’t Let Other People Tag You

• GigaOm: Facebook Turns the Privacy Fear Meter Up to 11

• Guardian.co.uk: Does technology pose a threat to our private life?