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Legal Cases & Ethics


The 2013-2014 Annual Report from the Chief Surveillance Commissioner has a section (Pages 20 - 21 Points 5.30 - 5.33) on using Social Networking Sites as an investigation / surveillance tool. It is worth reading and understanding how this will affect your actions and enquiries.


There are not many relevant stated cases in the UK that fit completely with the use of Open Source Intelligence (if you are aware of any then please email us with some details); however there are a number of cases we are aware of, from different courts & hearings which have raised some issues that are worth highlighting.


The first are from the Press Complaints Commission, who are the self-regulatory body which deals with complaints about the editorial content of newspapers and magazines (and their websites);

Ms Sarah Baskerville (Daily Mail)
Ms Sarah Baskerville complained to the Press Complaints Commission that an article headlined "Oh please, stop this twit from Tweeting, someone", published in the Daily Mail on 13 November 2010, intruded into her privacy in breach of Clause 3 (Privacy) and was misleading in breach of Clause 1 (Accuracy) of the Editors' Code of Practice. The complaint was not upheld.

Ms Sarah Baskerville (The Independent on Sunday)
Ms Sarah Baskerville complained to the Press Complaints Commission that an article headlined "The hounding of Baskerville", published in the Independent on Sunday on 14 November 2010, intruded into her privacy in breach of Clause 3 (Privacy) and was misleading in breach of Clause 1 (Accuracy) of the Editors' Code of Practice. The complaint was not upheld.

A Woman (Loaded)
A woman complained to the Press Complaints Commission that an article headlined "Wanted! The Epic Boobs girl!" published in the February 2010 edition of Loaded, intruded into her privacy in breach of Clause 3 (Privacy) of the Editors' Code of Practice. The complaint was not upheld.

Phyllis Goble (The People)
Phyllis Goble complained to the Press Complaints Commission, on behalf and with the signed authorisation of her son-in-law, John Hayter, that an article published in The People on 26 April 2009 headlined "‘My lot have murdered someone again. S*** happens'" invaded Mr Hayter's privacy in breach of Clause 3 (Privacy) of the Code of Practice. The complaint was not upheld.

Ms Mullan, Mr Weir & Ms Campbell (Scottish Sunday Express)
Ms Elizabeth Mullan, Mr Robert Weir & Ms Morag Campbell complained to the Press Complaints Commission that an article headlined “Anniversary shame of Dunblane survivors”, published in the Scottish Sunday Express on 8 March 2009, intruded into their sons’ private lives in breach of Clause 3 (Privacy) of the Editors’ Code of Practice. The complaint was upheld.


The second are from different civil cases in the UK;

Locke v Stuart and AXA Corporate Solutions - from Keoghs
Locke v Stuart and AXA Corporate Solutions - from Weightmans
Locke v Stuart and AXA Corporate Solutions - from Kennedys
The Insurers were able to show that motor accident claims were fraudulent by producing three large files of Facebook searches, concerning 28 account holders, which revealed links between many of those suspected to have been involved in a fraudulent series of road traffic claims in the Birkenhead area between 2006 and 2007. The judge endorsed the proper use of Facebook in such circumstances, but recommended that in future the court is presented with a document explaining how entries on Facebook are created and what inferences may safely be drawn from them, which would avoid spending too much time debating the concept & significance of Facebook friend.

Smyth v St Andrew’s Insurance Plc - from bailii.org
A claim was made against the insurers arising out of a house fire where a transcript of an exchange of messages on Facebook was produced in evidence by the claimant. The judge commented that the messages sent by one of the house’s inhabitants to a witness six days before the trial accusing him of lying about her smoking in her room were “abusive and aggressive”. The judge upheld the claim, concluding that the most plausible explanation for the fire was the accidental discarding or dislodging of a lit cigarette by the sender of the Facebook messages.

Safetynet Security Ltd v Coppage - from bailii.org
The defendant was sued for breach of a non-solicitation covenant in his contract of employment during which the claimants attacked the defendant’s credibility by referring to the fact that he had lied on his Facebook page, as they put it, “he claimed to be an ex-SAS officer and did not reveal that he was an ex-police officer when asserting his credentials in security”.

Robert Gordon Martin & Heather Elaine MARTIN v Gabriele Giambrone P/A Giambrone & Law, Solicitors and European Lawyers - from bailii.org & www.carson-mcdowell.com
The plaintiffs were asking Mr Justice Horner if they could rely upon Facebook posts made during the course of their legal proceedings against the defendant, who was objecting to its use and objecting to the comments being put before the Judge dealing with a Mareva Injunction.

The defendant claimed that use of the comments would breach his confidence as his Facebook site is restricted to communications to his friends only and that the material was private. However Mr Justice Horner noted: “Before I go on … I should say that anyone who uses Facebook does so at his or her peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends.”


The third are from Employment Tribunal cases in the UK;

Game Retail Ltd v Laws UKEAT/0188/14/DA & reported Here
This regards an Employment Appeal Tribunal brought by Game, the computer games retailer, concerning its dismissal of one of its employees for an alleged misuse of Twitter. Game had fired its loss and prevention officer, Mr Laws, for gross misconduct following the discovery of “a significant number of offensive, threatening and obscene tweets” on his personal Twitter account.

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)
Judgment in a claim for breach of contract where the claimant had been demoted after posting a comment on his Facebook page concerning gay marriage. The claimant was found to have been wrongfully dismissed and was awarded damages accordingly.


The fourth are from different criminal cases in the UK;

R v T [2012] EWCA Crim 2358 - from bailii.org
This case relates to procedural issues regarding the introduction in evidence of Facebook posts, in this case by the defence.

Bucknor v R - from bailii.org
Bucknor appealed against his conviction for murder on the grounds of a ruling made by the trial judge, that evidence from Bebo & YouTube was admissible and also concerned his subsequent direction to the jury about that material. The judgement means that any material taken from the internet must have a full provenance.

It is also worth researching the Chad Evans / Twitter case, where a number of individuals put information on Twitter and were subsequently charged & convicted with publishing material likely to lead members of the public to identify the complainant in a rape case, contrary to the Sexual Offences (Amendment) Act 1992.


The fifth are from other cases around the World;

USA v Joshua Meregildo et al 11 Cr. 576 (WHP) - from the USA
Provides an analysis of the expectation of privacy of a Facebook user who shares information with Facebook ‘friends’. In this case the US District Court found that the US Law Enforcement did not unlawfully gain access to information through the assistance of a co-operating witness who was one of the defendants Facebook ‘friends’.

ECJ - Lindqvist - European Court of Justice ruling
ECJ - Lindqvist - European Court of Justice ruling
ECJ - Lindqvist - European Court of Justice ruling
Concerns the publication of personal data on the internet.


Sometimes we must consider the Ethics of what we do, as even if our actions are legal we may be criticised for carrying them out.

The College of Policing has now issued its Code of Ethics for Officers & staff in the Police in the UK.

The Committee on Standards in Public Life is an independent public body which advises government on ethical standards across the whole of public life in the UK. The Seven Principles of public life set by the Committee apply to anyone who works as a public office-holder. This includes all those who are elected or appointed to public office, nationally and locally, and all people appointed to work in the civil service, local government, the police, courts and probation services, NDPBs, and in the health, education, social and care services. All public office-holders are both servants of the public and stewards of public resources. The principles also have application to all those in other sectors delivering public services and cover;

         Selflessness
         Integrity
         Objectivity
         Accountability
         Openness
         Honesty
         Leadership.

The Association of British Investigators set the Code of Ethics & Professional Standards for its members, covering;

         Principle 1- Responsibility and Accountability
         Principle 2 - Honesty and Integrity
         Principle 3 - Caution and Thoroughness
         Principle 4 - Conflict of Interest
         Principle 5 - Acting within the Law
         Principle 6 - Authority, Respect and Courtesy
         Principle 7 - Equality
         Principle 8 - Confidentiality
         Principle 9 - General Conduct
         Principle 10 - Challenging and Reporting Improper Conduct

The National Union of Journalists code of conduct has set out the main principles of UK & Irish journalism since 1936. The code is part of the rules of our union and all journalists joining the NUJ have to sign up and agree they will strive to adhere to its professional principles.