In what we think is a world first, the Lord Advocate of Scotland is claiming in the contempt of court case against me that I am legally responsible for the content of replies to my tweets.
The claim is founded on an argument that when you tweet, there is a menu which enables you to hide replies. If you do not hide a reply, you are therefore the publisher of that reply. As the Lord Advocate is putting it:
2. That the Twitter account under profile name @CraigMurrayOrg is operated by the Respondent. When the user of such an account publishes a post on Twitter, there is an option for readers to post publicly available comments in relation to each post and to reply to other readers’ comments. Replies to original posts will appear on the timeline of the author of the original post and on the timeline of the author of the reply. The user of the account who published the original cannot delete comments by others but, since November 2019, has the option to hide replies to their original post.
Note this is a very different argument to the accepted principle that if you publish a defamatory or otherwise illegal tweet, you bear a responsibility for people retweeting or passing on the information.
What the Lord Advocate is saying is that you can post a perfectly legal tweet, but you are responsible for any illegal replies. So if you post “Joe’s Fish and Chips are Great”, and somebody replies “But old Joe is a paedophile”, you become the publisher of the reply and liable in law for it (presumably unless you hide it, but that has not been stated in terms). The Lord Advocate is arguing that the reason that this has not previously been the law is that it is a new situation, with the “hide reply” option only being added in November 2019.
The reason this argument is being made is that the Crown is struggling to prove I published anything illegal myself, but believes a reply to one of my tweets is more obviously illegal.
The situation on Twitter is very different to a blog or media website. This website is mine. It is registered to me, I am the publisher and I accept responsibility for its content. Even there, however, the law on comments is much more nuanced than people realise and I am not generally liable for comments unless there was something in the content of my original post that was illegal or encouraged illegality, given that reasonable arrangements for moderation are in place.
But neither you nor I nor any other user is the publisher of Twitter. There is no sensible view in which you are the publisher of replies to your tweets. Twitter is the publisher of tweets and users are responsible for what they tweet.
The Lord Advocate’s approach would have a massive chilling effect on Twitter and fundamentally change its nature. When you tweet there is an option to limit who can reply. People would be loathe to allow replies at all if they were liable in law for what other people might say. Nobody wants to have to be constantly checking replies to their tweets, including to old tweets, in case somebody – who may be somebody you never heard of – tweeted something illegal.
For good or ill, Twitter has become a major medium of social and political debate. That dialogue would be entirely changed if replies are routinely turned off. What troubles me is that, in stretching for a way to convict me, the Lord Advocate appears completely oblivious to the very wide consequences of this argument for free speech. The Lord Advocate is of course not only Scotland’s chief prosecutor, he is also a member of the Scottish Government, appointed by the First Minister.
I cannot help but put this together with the Hate Crime Bill, which was condemned as an attack on free speech by every reputable body you can possibly imagine, and conclude that Scottish Government has no concern whatsoever for the concept of freedom of speech. It simply does not feature in their internal thinking, and is of no concern unless hammered upon them from outside.
The doctrine that Twitter users are the legal publishers of replies to their tweets has massive implications were it to succeed in court. That it should be recklessly resorted to as part of this vindictive attack on me, shows how deep down the rabbit hole we are going.
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What a strange statement from the Lord of Scotland. I have not seen such a line in the Twitter user agreement, that Twitter passes the moderation responsibility to users themselves.
Twitter can only kindly provide the OPPORTUNITY to the comments that do not suit the topic starter.
If the Lord of Scotland believes that this OPPORTUNITY implies a DUTY to moderate, then each Twitter user should discuss the issue of payment for such work with the Twitter owners, right? They can’t force people to work for free.
I mean, in that case, users would have to get broader tools in order to efficiently perform moderator duties.
For example, Twitter would be required to develop and implement a notification system for each new comment, then establish clear rules for user’s moderation action, and, Twitter would need to obtain a valid consent from each user on the new Terms of Use not to forget Twitter must be somehow sure and ready to prove that users saw the terms and agreed, and that all that terms have some legal validity.
If you haven’t seen anything of that, then what is the legal base of the Lord’s claim? I strongly doubt that he has given any good thought to his statement.
here it is:
para 3. Content on the Services:
You are responsible for your use of the Services and for any Content you provide … All Content is the sole responsibility of the person who originated such Content
…
You retain your rights to any Content you submit… What’s yours is yours — you own your Content… By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license … to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media …
https://twitter.com/en/tos#intlTerms
—
So, the comment belongs to the person who made it, and publishing of the comment is the responsibility of the Twitter.
“If you haven’t seen anything of that, then what is the legal base of the Lord’s claim? I strongly doubt that he has given any good thought to his statement.”
The Twitter terms and conditions are private matters for them, and in the aftermath of a contract dispute surely they would have to initiate a civil case. The Lord Advocate should stick to the laws of the land, duly passed by Parliament and modified over time by court rulings and precedents.
So yes, the question remains what is the legal basis for his comments. Without that it is just so much hot air (and possibly prejudicial?).
I don’t use Twitter but I think it’s the same as most social media platforms in that it has a reply button. When a respondent clicks that reply button, then they become the publisher of that reply. That’s just basic common sense.
Twitter may claim that they’re just a ‘platform’ but that’s not the case since they’ve frequently removed offensive and/or illegal posts in the past and by doing so, they’ve accepted responsibility for what’s been published to their platform.
Unfortunately, you’re involved in the legal system in Scotland because elsewhere, the Lord Advocate of Scotland would be laughed out of his office for even attempting such a ploy as this!
Does anyone think an independent Scotland would be any better?
Australian Supreme Court ruled last year that publishers are legally responsible for pre-moderating comments on their social media site.
https://www.news.com.au/technology/online/social/media-companies-liable-for-fb-posts/news-story/ddead51788d44f2b2ad36f1bd7db7a6f
I think the legal position is changing on this. There are moves to remove the “common carrier” designation that shields FB and other platforms from responsibility for third party posts and designate them publishers. However, I think it is unlikely that they actually want to go after FB and Twitter but very likely they want to be able to hold independent news sites using those platforms accountable for third party comments. It is another attack vector on independent news.
” Does anyone think an independent Scotland would be any better?”
If oil wealth was managed and invested well for a while ( a la – Norway) – then definitely – YES!
I think it would be wise to assume that there is not much oil left. Not much, anyway, that can be extracted at a profit.
That’s actually not so. My daughter in law did most of the core testing for the North Sea oil drilling. She assures me there is oil there for ANOTHER HUNDRED YEARS and with new technology coming online, most of it will be recoverable at a profit. The old Ian Wood lie its running out is just that – a lie. It was a lie in 2014 and it’s a lie now. (Whether we WANT to extract it is a whole different ball game).
You will win in court, Mr. Murray. Bon courage !
What else would you expect from the SNP?
I agree that this seems to compliment the Hate Crime bill, but also their other post modernist policies, especially those which seek to erase women from society. Make no mistake, Craig: the SNP has taken a bizarre and authoritarian turn in the last few years. I worry about what an independent Scotland is going to look like if they get their grubby hands on our government after independence is achieved. Although since they don’t really seem to believe in independence other than as a buzzword, I sadly doubt it’s a realistic prospect any time soon.
I’m curious, how long after somebody has replied to one’s tweet with an illegal comment does one have to hide that offending comment before one can be held responsible for it?
Seconds? Minutes? Hours? Days? Months?
What if one does not know that the offending comment has broken some law?
People claim many things in comments. Sometimes they are correct. Sometimes they are mistaken. How is the author of the original tweet to know whether or not a particular comment has contravened some regulation?
Moreover, if an author were to hide a particular comment, wouldn’t that then confirm the veracity of the hidden comment for all those who had managed to see it and perhaps retweet it before it was able to be hidden?
If this argument succeeds I could log onto the Tory party Website or twitter account under a false name and post an illegal statement. If it was still there two days later I could snapshot it and report the Tory party to the police ( and the press, to ensure it is not buried, but that’s not the point here) and the Tory party would carry the can.
More worryingly, if such vicarious liability becomes legally the case, everyone with a Twitter or any other social media account or a blog would have to swicth off replies/comments because of the danger of just what you describe happening. Or pre-moderate which would take up all of someone’s time except for those with resources to do so ie. MSM.
The effect would be to smother any interaction with sites such as this.
Perhaps Twitter would like to file an amicus brief on this question?
Don’t count on it.
More likely the judge here has already informally discussed this with Twitter’s Scottish branch.
Twitter users: A guide to the law
By Brian Wheeler
https://www.bbc.co.uk/news/magazine-20782257
February 2013
Ref the Lord McAlpine case.
Not the same at all.
I didn’t say it was.
I know.
From Twitter Privacy Policy:
“Despite this, you alone control and are responsible for the posting of your Tweets and other content you submit through the Services, as provided in the Terms of Service and Twitter Rules”
It specifically states ‘YOUR Tweets’, nobody else’s. Since a reply to your Tweet wouldn’t normally be made by yourself, then as the policy states, the responsibility lies directly with the person who posted the reply. Twitter is clear on this. You’re not liable.
However, it also says:
“If you live outside the United States, the data controller responsible for your information is Twitter International Company, an Irish company with its registered office at The Academy, 42 Pearse Street, Dublin 2, Ireland.”
Their legal department might be interested in hearing from your legal department.
That may be Twitter’s policy but Twitter’s policy is not the law. In the end it won’t be Twitter who decides who is or isn’t responsible for tweets, it will be the courts.
Intriguing possibility of the Different Law in Scotland Joker card being in play ?
Clearly such a precedent in Scotland would not affect Twitter that much, and would almost certainly be appealed and probably overturned. CM on the other hand would find his time and treasure tied up in a big way for the next few years whilst the wheels grind exceeding slow.
Given that Nicola is getting some heat now over the Salmond fiasco, I’m sure the possibility of quieting one of the non establishment reporters might look appealing, even if the methods used verge on the Kafkaesque.
Unbelievable, you can tweet a comment and then be legally responsible for every unhinged eccentric barb delivered in response.
This law will definitely have the effect of gagging public discourse, perhaps that is the intention. It will encourage vexatious legal proceedings under the guise of protecting free speech, in the knowledge that the ordinary citizen will not wish to be involved in an expensive legal process. The only people who will gain by this will be the lawyers.
The only consolation I can see from the Lord Advocate’s letter is that it is clearly the work of a very desperate mind; if the matter was not so serious it would be laughable.
Should be no problem to use this to scupper any MP, Minister, BBC or Guardian Journalist, or Judge with a Twitter account or Facebook page. AND they will have to go through all their historical posts… Should be plenty of material to work from on Cummings and every member of the Government. Not only that but by deleting them the person doing so is tampering with evidence!
Should also be possible to wipe out by lawsuit any Newspaper with a comments section as they, not a third party such as Twitter, are publishing the comments and failing to remove. Consider all the racist comments made in news paper comments in the Daily Mail anyone want in Scotland want to start?
I think you have identified the source of the Lord Advocate’s absurd blunder. He seems to assimilate Internet comments to old fashioned letters to the editor, which a newspaper could decide to print or not, and for which it would assume some responsibility.
Thanks for dispelling my suspicion that Lord Advocate intention was to throw a kitchen sink at Craig Murray who is pain in the neck (and some parts below) to various governments in your island and thus is thoroughly despised in the circles close to said governments, including his lordship himself. But he was merely a gent in his years, unaware of technologies of the last 100 years.
In any case, the affinity between neo-liberalism and fascism is growing.
This is guilt by association, and has a long history. Corbyn was crucified for it, the allegation of ‘sharing a platform’, or being present when others who can be traduced were there. And of course the witch hunts on Facebook and other social media look for replies and associated threads which cast the original poster as an accomplice to the replies they generate. It is so farcical that even liking a post by somebody else is enough to generate hate and attempts to get that person fired or their reputation. blackened. If memory serves the same tactic has been used against this blog, where comments are produced as ‘evidence’ of what the blog post means or implies.
It is the thought police and vigilante patrolling, which has been effective in many cases. And of course, once that is allowed or endorsed, then it is a simple matter for trolls to post extremist or conspiracist memes in order for exactly that to happen.
One would hope that none of it would stand up for a second in a court of law, but that is not often the point,, it is enough to smear the target in public and the media. But this latest version of that tested technique is so ridiculous, especially given Twitter’s very clear policy on responsibility, that it shows how desperate they are to make something stand up. If it was accepted it would open the proverbial floodgates for litigation of anybody who gets bizarre, offensive or muckraking replies, through no action of their own. It would be the ultimate DDR style policy of informing and passing judgement on people without any recourse for the victim. Palestinians get it all the time when they post on Facebook, have been put in prison for daring to offer a political point of view.
But in Scotland? Utterly absurd. They should be ashamed of themselves and their secret police manoeuvres.
So if someone posted the names of the Salmond complainers in a reply on BBC Twitter it’s the BBC that would be in contempt? mmm?
Do it!
Mmm. Indeed.
Something like this should probably be done at 04:00am, quickly screen-shotted and also archived
“The Internet never forgets”
In fact, this attack on Mr. Murray is very dangerous to the freedom of speech. It is clear when decomposed into a chain of simple actions:
– some uncontrolled person expresses an opinion
– this opinion is not sanctioned by Mr. Murray
– a government official makes Mr. Murray responsible for the opinions of that individual
As the Lord’s statement implies that Mr. Murray knowingly violated the law, it might entail the possibility of prosecution.
This is similar to the responsibility for concealing crimes, we had it in the USSR. E.g. if you knew that your neighbour is producing hooch (or exchanges foreign currency, or has love affair outside the family, or does anythyng else different to the Communist Ideal Citizen).., you were responsible to file a ‘donos’ to the authorities, and they could prosecute you, if you hadn’t filed.
The only difference of the USSR criminal code and the Lord’s Advocate statement is that it’s not a crime to express opinions on Twitter, therefore, hiding or publishing opinions is not a crime either.
Does the Lord Advocate of Scotland have a Twitter account?
He doesn’t have a brain, so it’s unlikely.
From what I’ve seen of Twitter, that’s not a requirement.
The point is, it would be a real shame if someone posted something to one of his posts and he had to prosecute himself
Or indeed, to any well-known Scottish politician’s Twitter feed.
“… I cannot help but put this together with the Hate Crime Bill, which was condemned as an attack on free speech by every reputable body you can possibly imagine, and conclude that Scottish Government has no concern whatsoever for the concept of freedom of speech. It simply does not feature in their internal thinking, and is of no concern unless hammered upon them from outside… ”
I think that the party machine has lost control of the worst elements in its ranks, Craig. It has grown too big to run efficiently and with adequate oversight unless it is brought up sharpish by its bootstraps. Allied to that is the seeming utter lack of proper legal advice on the legislation that is being brought forward.
There is no doubt in my mind that the ‘hate crime’ bill was deliberately coupled with the GRA reform to make it impossible for anyone to criticize GRA reform without being liable to prosecution. That could only be possible by trampling the legal sex-based rights of women enshrined in the 2010 Equality Act, which, incidentally, also protects trans people’s rights, but not as sex-based rights. This is where it all starts to unravel, because women’s sex-based rights MUST, by implication, be destroyed in order to advance self-ID to the extent that is now being demanded by the trans lobby (which is distinct from trans people themselves, being led by Stonewall and other groups).
To not have pointed this glaringly obvious clash between two sets of rights was a dereliction of duty, and probably the reason that GRA reform was being ushered in, initially, under the radar.
The same is happening here: you and other on-line publishers of blogs, tweets, etc. are being swept away to ensure that the field is occupied solely by those of whom the authorities approve – the MSM – except it is reverse, as it were. The MSM is the old guard and the collaborators with authority and the status quo and you and your colleagues are the new upstarts who can do great damage by occupying the great gaps in factual and investigative reporting left fallow by the MSM.
In the GRA/hate crime debate, it is the rights of a group that has all the same rights as the rest of us, remember, whose lobbyists want to push at the expense of women, whose sex-based rights will be swept away if the new regime comes to fruition. One group’s human rights can never be at the expense of another’s. Room has to be created for both to exist side by side. The trans lobby does not want to share or exist side by side any more than the MSM and the authorities want to share and exist side by side with you and your colleagues.
You are not challenging the MSM’s right to exist and go on publishing, but they, and the authorities they support with the status quo, are challenging your right to exist and publish as you see fit, and it is not trans people’s rights that are under threat, but women’s. I have yet to get a reply when I have asked why trans people cannot be trans people, and why they must be ‘women’ or ‘men’ in the sex, rather than gender, meaning of those words. I’d bet you have had no answer either, to why both you and the MSM cannot both exist?
It appears that the charges against you are looking bit like the charges against Alex Salmond: a bagatelle of desperate measures. Which, when you think about it, is consistent, at least. If they don’t drop this nonsense before it comes to court, they will look extremely foolish when their case falls apart – again – as it will. They should draw a line under it now – for lack of actual evidence and save eggy faces all round, and public money.
Lorna
When the Scotgov have only £40m to spare for businesses affected by closure due to the virus it is a disgrace the amount of money they have wasted on the Salmond scandal. Also the Rangers administrators are suing for £38m in that other case that the Lord Advocate admitted in court was a malicious prosecution. Says it all that the people involved in a malicious prosecution are still in their jobs.
so that means that if i were to say that the lord advocate is a liar
that you might be liable ?
or if i was to say a truth- that lets say, erm, eh, – that the first minister is a liar
you would also be liable?
just as well i said no such thing and that mere hyperbole is not actual speech.
phew i am so glad i missed a bullet there.
also i do not intend to circumvent the obscene publications act by stating
“i am a cunt and proud”
c’est la vie
name and address supplied… (under duress – IP is not address or proof of address)
“so that means that if i were to say that the lord advocate is a liar that you might be liable ?“
IANAL, but the answer seems ‘yes’, as Craig already indicated in his post.
However, he is a publisher, with this blog.
In the Twitter case being discussed here, Twitter is the publisher. Craig cannot do much of anything about a questionable tweet that is a reply to one of Craig’s tweets — only hit the ‘hide’ button, which is ineffective, and to me seems nothing more than cosmetic, used not to clutter the discussion space. He would need to having been given a ‘delete’ button to be able to be held responsible. That would immediately give him editing power on Twitter.
Again, don’t listen to me, I am not a lawyer, ymmv, etc.
thank fuck that i said no such thing
for the lord advocate is as far from a liar as …
the first minister is,,,
ianap (i am not a publisher)
phew
breaths easy
that wouldn’t give editing power as such as replies appear before being seen by the original poster, the power to delete is not the same. Editing would require that each and every reply would have to be viewed by the original poster before anyone else could see it, Totally unworkable.
That is exactly my point.
Craig, their extreme, frenzied reaction shows how excellent you are. You’ve excelled at all your positions. Wow!
truth is a defense
Smash Twitter! Smash Facebook!
It would truly be an awful thing if someone were to post the names of those that must not be named as a reply to a recent Tweet by, for example, Nicola Sturgeon. I hope that no one would countenance such an underhand act.
Well, that would be a criminal act. Twitter would be asked by the police to expose the poster; if they refused to comply, they would be obstructing a police investigation, and would expose themselves to prosecution.
So they would comply.
I therefore advise against that course of action.
I’m not following the details of this, but there is no general obligation to assist a police investigation.
The police can apply for a court order requiring a person (in the court’s jurisdiction) to do something.
The people must take the law into their hands and make all laws just and fair. We cannot leave this in the hands of the people who think they are better than Joe Bloggs or you. The whole judicial system requires a complete cleansing and updating. The selection of judges must also be changed and put in the hands of the people if this is not done corruption will just go on and money will be the system for securing justice.
Surely then, if that were the case, I could maliciously make an illegal comment on anyone’s tweet. If the Lord Advocate has a Twitter account, I could make an illegal comment and the Lord Advocate would be responsible for my comment? It sound almost too silly for words.
He doesn’t have a Twitter account as far as I can see.
Others do… jus’ sayin’…
Public interest – No chance
Who is allowing this persecution to continue?
Why is that totally bonkers man still practicing? Why is he still a minister at all, or allowed at the bar? He’s just cost the Scottish Government millions of pounds in compensation claims because he’s incompetent and malicious with it! And that DOES take money out of our limited budget – until we have our own currency and our own central bank, we are beholden to getting the hand-outs.
Where is the scandal? He should be in bloody jail! Not anywhere near the courts trying to put others in jail!
A total and utter imbecile – no wonder all the legal advice the ScotGov receives is shit, and all their legislation is shit.
This latest ‘good idea’ he’s come up with really is reaching, what a shambles he is. Embarrassing that he has anything to do with Scotland. I can’t see any judge touching that one with a barge pole, unless he finds some weirdo fantasyland reason that it only applies to Craig.
You know – I think I have *identified a ‘gap’* in the Scottish Government’s ministerial code – I think there needs to be a stronger punishment for current and past ministers – where any wrongdoing, such as wasting public funds, is punishable with a jail term and permanent ban from holding public office. Take their passports off them too, so they can’t travel abroad and make millions ‘advising’ genocidal governments abroad – in fact get them to pay it all back, strip them of every single asset, including the shirt off their back, and after jail they can live off the dole the rest of their lives. And as soon as any questionable behaviour is flagged up, suspend them so they can’t do any more harm while it’s being investigated.
The current Lord Advocate is a costly waste of space.
When you look at the decision to make politicians liable for prosecution in retrospect, in order one can only to assume to target one man, and add it to this latest attempt to bend the law in order to apply to another man, one can only deduce that certain establishment people have become so intoxicated with their power that they think the law is merely an instrument to be manipulated in their own interests, and not a dispassionate, neutral body of agreed rules which apply equally to everybody. I believe it is called despotism, among other things.
What law really is:
https://ia803105.us.archive.org/1/items/THEMYTHOFTHERULEOFLAWByJohnHasnas47/THE%20MYTH%20OF%20THE%20RULE%20OF%20LAW%20by%20John%20Hasnas-47.pdf
Not that we needed it but this is absolute proof that the prosecution of yourself and Mark Hirst are political in nature is confirmed by this. That you are not cowed by it obviously irks the politicians much as Salmond’s defiance also irked them. If it didn’t why would this attempt to take Scots Law where it has not been for a couple of centuries would not be happening.
It’s of a piece with Sturgeon’s increasing arrogance. The poll numbers are making many in the SNP think they’re bullet proof. We need to show them they are not.
How nice. Will the Lord Advocate next make you responsible for what folk dream about you? The precedent is just that wee bit stale (1690s) but one can’t be picky while trying to fit someone up..