The Terry/Ferdinand case shows there's a difference in attitude on social media when it comes to some fundamental principles of our judicial process
If the John Terry case is anything to go by, and the attorney general's enthusiam for action persists, it is only a matter of time before a tweet lands someone in the dock for contempt of court.
On Monday Rio Ferdinand decided, on the day his brother went to court as the alleged victim of racist abuse by John Terry, what seemed to be a comment on the trial.
Rio Ferdinand has in excess of 3 million followers and more than 3,287 of them had retweeted it by 3pm, with 355 marking it as a favourite.
This is not the first time that a footballer with a large Twitter following felt able to share their thoughts on the Terry case. Back in February, Joey Barton entered the fray with a series of tweets.
In Barton's case, a few days later, the attorney general, Dominic Grieve announced he would not be taking any action and it would seem unlikely that Rio Ferdinand will face any prosecution. The reason for their escape is that Terry is being tried by magistrates, who, like judges, are expected to be beyond the influence of the media.
To be guilty of contempt you must publish something that causes a "substantial risk of serious prejudice or serious impediment to active proceedings". While what Barton, and possibly Rio Ferdinand, tweeted was seriously prejudicial, it fails the substantial risk test because of the expectation of impartiality of the magistracy and judiciary.
However, the situation points to a difference in attitude on social media to that of traditional media when it comes to some fundamental principles of our judicial process – the presumption of innocence and the right to a fair trial.
While traditional media and their online platforms could, in theory, have been discussing the John Terry case at great length in the past few weeks – and could have given running commentary on how they think his case is progressing today – they have not done so.
The same cannot be said of Twitter, where a brief sample of Monday's tweets reveals a battle raging between those who support Terry and those who most definitely do not. This is of course, no different to the conversations about the subject that have gone on in the saloon bars up and down the land during every high-profile trial. The difference is that Twitter is the saloon bar on steroids, where a tweeter such as Rio Ferdinand can reach an audience of millions at a push of a button.
Few may have too much sympathy for newspapers though, having seen the outrageous contempts committed, for example, in the case of Chris Jefferies when he was arrested in the Joanna Yeates murder investigation. It is a bit rich protesting about the occasional ill-judged tweet, when papers have been pushing at the boundaries and bursting through them for decades until Grieve started prosecuting.
This trend does however, show a change in attitude to the public debate about charges and trials, especially of public and controversial figures such as John Terry.
While the likes of Rio Ferdinand and Barton may not be able to influence magistrates, or a judge, they could certainly influence jurors. If a weekly paper selling a few thousand copies can be hauled up for contempt, then why should not a tweeter with a 'circulation' of millions.
Furthermore, it is easy to see, even at a magistrates trial, how a tweeter with millions of folllowers might whip up a tweetmob that might put off a witness from testifying, thus causing the serious impediment to proceedings that could lead to a contempt charge.
The Law Commission is looking at the issue of contempt and the internet and is due to report in 2014 – given the rate of technological change, and the new-found enthusiasm some have for offering opinion on ongoing trials – it might be advisable to speed up the pace of its inquiries.
• David Banks is a journalist and media law consultant Read More
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