Lord Advocate Launches War on Twitter 420


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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420 thoughts on “Lord Advocate Launches War on Twitter

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  • al bolger

    It’s going to be a bit of a reach to implement this into law surely,
    or if implemented it could spell the end of the twitter trial by mob that we all so adore (well i do anyway).
    Albeit perhaps in Scotland only, legal clarification here please?
    Perhaps our American overlords may have something to say on this matter??

  • Greg Park

    Take away the grand title of Lord Advocate and all you have is a political hack appointed to do the bidding of another political hack. So therefore a key question must be, who appointed the “Lord Advocate” and what outcome does that person want to see in your case? Only by answering that question can we appreciate why the ” Lord Advocate” wants to make you responsible for random replies to your tweets.

      • Greg Park

        Ah, not a person who would ever try and influence a trial, let alone try and get innocent men banged up.

      • Eric Lilius

        Twitter must know about this. What are they doing about it since it would greatly affect their service? I would suggest that you keep them apprised of the government’s intentions.

  • Pól Ó Duibhir

    So could I shut down Trump by making an illegal comment on one of his tweets. I don’t think that, under the USA constitution, he is legally permitted to hide comments.

    Wow.

    • Josh R

      was also thinking along these lines,
      sounds like, if I was into twittering, I could make a right nuisance of myself getting other people into trouble by replying to their twits,
      wonder if the Lord Advocate is a twitterer :-))))

      • ALFU

        While this potential ruling would make the tweet originator liable, I doubt it would absolve the replier of some level of personal liability too??

        I.e. you may sink the ship, but you’re possibly chained to it….

  • Fwl

    “All men are equal before the law, and the fundamental rights of the citizen,
    the freedom of speech
    the freedom of association
    The freedom of the person,
    Are exempt from arbitrary powers, privileges and prerogatives.“

    Dicey, Law of the Constitution

    ********

    Sounds like all of the fundamental freedoms are in threat.

  • Republicofscotland

    Have you contacted Twitter UK, I’m sure this ludicrous angle from the Lord Advocate, would damage the Twitter business model in the UK if by some fantastical reason that the prosecution of you were to be successful on these grounds. Having Twitter’s lawyers in your stable so to speak would surely force the Lord Advocate to think twice about pursuing this comical route.

    The vile disgraceful disgustingly corrupt creatures that seek to imprison you are now scraping the bottom of the barrel.

  • Geoff S

    Of course this is attempt to throw a wide net around all commenters and pin them on one individual will surely fail any reasonable smell test, but the insidious nature of an attack like this is that in defending against it, one is pushed to accept ‘responsibility’ for each and every thing they have personally posted.

    If they attack the commenter, then the argument is over whether the comment was legal and free-speech is the central point. When they attack an individual for another’s comment, then naturally the argument becomes whether you should be accountable for that comment or not, and less over the substance of the comment. The natural consequence is that the principle of free speech becomes secondary and its power diminishes.

    So regardless of the outcome of this particular attack, free speech takes a further step back.

  • J Galt

    OT, but only slightly.

    The First Minister appeared on Sky News this morning and publicly stated that she thinks Alex Salmond may be angry with her for not colluding with him to cover up the sexual allegations made against him.

    In effect is she accusing him of wanting to conspire to pervert the course of justice?

    I would say that is a most serious allegation to make if that is what she intended.

    Has she perhaps gone too far in the heat of the moment?

    • giyane

      J Galt

      She might just as well have said she didn’t accept the verdict of the High Court and she would hound Mr Salmond with lies and innuendo until he was locked up.

      All men in the world must be in some degree spiked on a woman’s right to deny their sexuality, which normally occurs in women who have been secually assaulted by someone in their youth.

      What I see in Nicola Sturgeon us an angry child trying to squeeze a square peg into a round hole by trying to bring down her former boss.

      She needs to see a shrink to sort herself out.
      The idea of her leading a nation without being able to distinguish her past from her present looks to me like a recipe for disaster.

      My mother was brought up living with an alcoholic father and she fell in love with cynical conmen like Alistair Campbell while giving my darling dad very little respect.

      I’m not saying Nicola Sturgeion’s nuts. I’m saying the only thing she’s leading at the moment is the Lord Advocate up the garden path.He appears for his own agendas to be a very willing accomplice.

    • penguin

      She’s insane. Is it worse for a politician to have a snog with another consenting adult or to use their office to have an innocent man imprisoned?

      Is having a lesbian fling with a member of your cabinet whom you subsequently sack behaving inapropriately? Asking for Shona.

    • lysias

      Sounds like it might be libel. If that charge is colorable, any legal proceeding would be most interesting.

  • dearieme

    For many years The Left has been waging war on free speech, most recently under such guises as “hate speech” and “microaggressions”.

    Just this week the ass who is Sec State Education has instructed the universities to deny free speech in the case of alleged anti-semitism (the definition of which he proposes to keep in his hands).

    Free speech, attacked from almost all sides, is probably doomed.

    The test is pretty simple – how many people are prepared to speak up for free speech even by loonies such as holocaust deniers?

    • Goose

      Centrists and the ‘woke left’ are just as intolerant as the right.

      As for Williamson’s edict to universities, it’s just a continuation of the fruitful politicisation of antisemitism by the Tories. The IHRA definitions were never meant to be used as ‘the’ authoritative code in disciplinary procedures.

  • ewan

    Not a tweeter, so do the replies get hidden on arrival or does the account-holder have to hide them.

    If that’s the case then ‘illegal’ replies there for a minute may be construed to be ‘published’.

    Is there a time limit in hiding ‘illegal’ tweets?

    Maybe someone is sent a 100 or a 1000 replies by a party wishing to harm the account-holder, how could they be hidden within a legal time-limit?

    • Geoff S

      Not a tweeter either and I can’t answer your question, but it can surely extend outside of twitter.

      What if you’re a home owner and someone pins a message to a public facing fence around your property?

      If I stand in a farmers field and shout abuse at passing motorists, is the farmer liable for what I shout?

      Perhaps I could get on a bus and start passing out offensive hate-filled literature to the passengers, and if police are called, I can just point at the driver and watch him taken away in handcuffs.

  • Goose

    I know employers can be held vicariously liable for actions of their employees on online networks and social media, but trying to stretch that to individuals and random members of the general public replying is absurd. What if someone tweets and then goes on holiday for a couple of weeks or is otherwise indisposed through illness, family matters etc. You’d need to employ a mod just in order to tweet at all.
    Personally, I don’t use Twitter, I’ll read through tweets but don’t have an account.

    • Rhys Jaggar

      I personally would not give a damn if Twitter were shut down. But I am not the majority, so I guess it won’t get shut down.

      But Twitter creates its own form of anti-justice and the rule of law is powerless to stop it happening.

  • Barbara

    For you, Craig, and for Julian, from Robert Burns:

    “Here’s freedom to him that wad read,
    Here’s freedom to him that wad write!
    There’s nane ever fear’d that the Truth should be heard,
    But they whom the truth would indite.”

  • KarenEliot

    The ultimate logic of this bizarre argument is that any troll (not excluding the legion of 77th Brigade disinfo agents and other shills) could discredit ANY user of Twitter by posting incendiary comment/s from the safety of their false identities with the express aim of polluting the reputation of the account holder.

    Broadly the same tactic seems to be being used against Darren Grimes, odious twerp that he is, for ‘permitting’ David Starkey to say things – a number of months ago now – that were easily cast as racist comments, and which he (Starkey) acknowledged were inflammatory.

    Seemingly an interviewer who does not interrupt an interviewee who is guilty of articulating their thought crimes could be playing career suicide, if not much worse. Hence only safe people talking in narrowly constrained terms about safe subjects will ever appear on mainstream media. (Which of course is broadly the case already.)

    That Grimes is notorious for prodding people into saying ridiculous things makes him an easy target who may win little sympathy.

    And the playbook from there is really not all that many steps away from the full-blooded rolling out of crime think. Such dangerous times are these. What other evil will be perpetrated when the next period of house arrest is imposed?

    Good luck Craig.

  • Ian T-W

    Hmmm, if a user is to be made responsible for the content of everyone who posts a reply to their tweet, then, by the same “logic”, shouldn’t Twitter also be held responsible? After all, they are the ones providing the platform and storing all the information…

    • Antony Mathews

      The Lord Advocate’s suggestion and your “logical” inference (purely rhetorical I note), is worryingly similar to how the US government has attacked Kim Dotcom and his Megaupload site, which was held responsible for the illegal actions of some users, despite clear safe harbour provisions in the relevant legislation.

  • Martin Kernick

    Actually Craig, I think you should find this heartening, it shows they haven’t got a case and if this is the best they can do then I can’t see any chance of them convicting you.

  • Ian C

    This is so ridiculous that it would appear that the objective is not to secure a conviction but (how did Peter Murrell put it) “the more fronts he is having to firefight on the better for all complainers”.

    It seems to me that at some point the Lord Advocate should be required to clarify why he considered that this action was in the public interest and why it warranted the expenditure of a significant amount of public funds and resources.

  • Stevie Boy

    To me, it seems that the bigger agenda here is to completely stop any comments, news stories or other information that doesn’t fit with the government line. The tory regime has already put in place controls on what can and cannot be taught in schools, eg. capitalism is one system but others systems exist …
    1984 was a warning, 36 years later we are now truly stuffed and on the verge of a real fascist dictatorship.

  • nevermind

    It looks like the system wants to engage you in a merry-go-round of grinding you down with obfuscating arguments, albeit costly, but hey Its the Scottish taxpayer paying for their folly.
    I pity him for the loss of spine he so obviously has suffered and hope that one day he will stop his political shenanigans and gets back to practicing law.
    Not taking part in expressing my thoughts by twatting in 140 characters seems to have been the right decision.

  • Jm

    This shows they know just how weak their case is against you.

    You wouldn’t expect a Lord Advocate to publicly comment on an individual case, particularly before it gets to trial.

    The so-called case against you looks even more ridiculously vindictive by the day and it stinks too, really stinks.

  • alan_b

    I don’t have a Twitter account, but from reading others’ tweets, I understand that if you hide a reply, there is a menu on the thread which says that some replies have been hidden by the post’s author, and allows one to click on a link to view them. The posts are therefore published whether you choose to hide them or not, and this is outwith your control. The Crown Office are getting desperate.

    • Colm Herron

      TO alan_b

      I TYPED THIS INTO GOOGLE:
      Can hidden replies still be seen?
      AND I GOT THIS ANSWER:
      Everyone can still access hidden replies through the hidden reply icon, which shows up on the original Tweet when there are hidden replies. Additionally, the Tweet author can unhide a reply at any time. When a Tweet author hides a reply, the author of the reply will not be notified. How to hide a reply
      About replies and mentions – Twitter
      help.twitter.com/en/using-twitter/mentions-and-replies#:~:text=Everyone%20can%20still%20

      WHAT DOES THIS SAY ABOUT THE LORD ADVOCATE?

    • Eoin

      That’s exactly what I was looking through the comments to see. The accusation above and its comical attempt at techno speak ignores the Twitter feature which alerts the world to the fact there are hidden replies and asks the world “do you want to see them”, to which the answer is practically always “yes, please, show me the comment that the author believed was worthy of hiding”.

      Also, has Craig considered going on Nicola Sturgeon’s twitter and posting the names of the complainants in Alex Salmond’s trial. Imagine walking into your local police station and reporting Nicola!

      Also, is Nicola Sturgeon responsible for the typical 1,000 replies to each of her tweets?

      I’ll stop there, this is so ludicrous sounding.

  • P.Hertel

    So if he had a Twitter account and I commented that he was an idiot he would be twice responsible for that Tweet.

    • TheBlogg

      Or, I could post a reply to one of the Lord Advocate’s tweets – say, in the early hours of the morning – naming one of the Alphabet Sisters, and the Lord Advocate would be guilty of contempt of court. (I hasten to add, I don’t have a twitter account, I don’t know any names, and I’d be none the wiser if somebody told me).

      • Angus Og

        I’m sure that if the Lord Advocate were to succeed in this “Tweet” folly then within moments of the judgement there would likely be a host of rascals doing exactly that to any Twitter accounts the justiciary members may have. A following phonecall to the police should then see them all arrested and subsequently charged with contempt. The right thinking members of the public can then sit back (with optional bag of popcorn) and watch them squirm. The law is equal for all men after all. (No, don’t chuckle) I wonder if it really could work that way, could it be that simple???

  • Loftwork

    There’s an interesting analogy with old-fashioned leafletting (from the days of the Ranters, for example). Suppose I print 1000 leaflets for public posting which say nothing illegal or defamatory, but include a headshot of a prominent politician. Do I have a legal responsibility if unknown to me, someone scribbles a pair of horns and the words “satan himself” on one leaflet? The graffiti artist is surely the “publisher” of this calumny, and as the reputable publisher of the leaflet I should be able to sue him for slandering my political cause. If, as the Lord Advocate proposes, I am the unknowing, unconsenting publisher of the graffito, then the Lord Advocate would also be legally responsible for any graffiti scrawled on his campaign literature and left in a public place. Or, in this case, for any scurrilous comments on his lordship’s tweets. Somehow, I suspect this is a total non-starter intended to do one thing and one thing only – to add to Craig Murray’s legal costs. In my humble opinion, that is nothing but malice in search of revenge.

    • bj

      He will argue you did not have any control over the scribbled horns, but you do have control to hide an illegal reply.

      • Ken Kenn

        Is illegal the same as truthful?

        You can tell the truth and allegedly break a law.

        Is this not where Julian Assange stands Mr Advocate?

      • Loftwork

        I can’t see the difference – the amount of control is the same. You can monitor all of your posted leaflets and remove them if they are modified. If you post a leaflet you create a platform for illegal comment for which you must (per the Lord Advocate) take responsibility.

        • bj

          You can monitor all of your posted leaflets and remove them if they are modified.

          Agreed on the monitoring, but as to the removal — that is not what the JA suggests; he wants you to hang a cloth in front of the scribbled-over poster.

  • Jeremy+Smith

    Why bother defending Twitter, when they, as you have claimed many times previously, keep throttling any posts the state deems it would prefer buried or kept from going viral ?

  • James Cook

    “The Lord Advocate’s approach would have a massive chilling effect on Twitter and fundamentally change its nature.”

    “…………..conclude that Scottish Government has no concern whatsoever for the concept of freedom of speech.”

    You likely already know this, but a court case/challenge can be useful in a myriad of ways (ie); silence/destroy an opponent, bring forward a legal/policy issue to distract from a more pressing internal conflagration, and to set a tangential legal precedent that will be useful to the administration in future.

    Someone has clearly calculated that you can be very useful to the administration, whether you cooperate or not. They may be able to use this case for multiple purposes and then in the end, if successful, lay the blame for all this at your feet! Clever, mischievous folks they are!

  • ET

    “Tweet authors have the option to hide replies to their Tweets. Everyone can still access hidden replies through the hidden reply icon, which shows up on the original Tweet when there are hidden replies. Additionally, the Tweet author can unhide a reply at any time. When a Tweet author hides a reply, the author of the reply will not be notified.”
    From Twitters own page:https://help.twitter.com/en/using-twitter/mentions-and-replies

    So, effectively, you cannot prevent people from reading replies to your tweets even if you were to hide them because they are still available on the hidden replies page albeit if people have to make an extra click to see them. Perhaps by hiding replies you may just be drawing more attention to them.

    I don’t have a twitter account so I cannot verify myself. The argument is trickier than it at first appears. Vicarious liability is a thing.

  • Cubby

    This Twitter stuff is ridiculous. Talk about clutching at straws.

    Sturgeons interview on the Sophy Ridge Show Sky News today was just appalling. Lie after lie and smearing Salmond on multiple occasions again. It is clear that the attacks on Salmond will continue – hey they have only been going for 3 years.

    This whole scandal has been an abuse of power and a misuse of public funds.

    Craig, I think your tweet on the Sturgeon interview got it wrong by mentioning all the blinking Sturgeon did during the interview it gives all the head in the sand people an excuse to ignore the actual lies in her answers and talk about blinking instead.

    • Goose

      Sturgeon was a fool for not simply saying, I’ve nothing further to add on that, forcing Ridge off the topic.

      Sky News have an agenda to destroy the chances of Scottish independence and Ridge is just another talking head client journalism practitioner in the Peston, Kuenssberg style.

      • Cubby

        Goose

        Think you have got that wrong. It was a deliberate attack on Salmond. It didn’t just happen. The correct parts of the interview were then extracted by Reporting Scotland for broadcast in their news. The correct parts being where she smeared Salmond.

        • Goose

          My point was more about her being goaded into discussing it with people with ulterior motives like Sky News. Sky News almost certainly isn’t trying to shed light on these matters or inform, carrying out a public service.

          One interesting thing did emerge: she let slip she was furious with Salmond over his RT programme.

          • Cubby

            Goose

            Sorry not trying to wind you up or anything but I don’t think you got my point. My point is she wouldn’t need any goading as the whole point of it was to smear Salmond. A dog whistle to her supporters. I have seen a lot more people emboldened to carry out another trial of Salmond – smear after smear. At least with Wallace when he was hung drawn and quartered it was relatively quick. Like Assange Salmonds torture seems to just go on and on.

            Of course Ferrier is also getting hung drawn and quartered by all and sundry. A Tory MP got the train home to Darlington in May with symptons of the virus but did not get all this extreme coverage. If it is SNP that is different to the Britnat media.

  • Paul Lawton

    If the judge agrees to this then he has opened a massive can of worms. If you can be held accountable for some one else’s post because you could “hide” the reply, then FB et al are well and truly screwed as they can actual take a post down, but if someone sees it before they remove it, they are by definition liable to be sued for allowing the comment to be posted.

  • bj

    What is the intention of the implementation of a ‘hide’ button?
    Hide from the screen? Vanish from the reply chain?
    Do replies, if you hide them, also not show up for people you are re-sending the tweet to?

    How does the ‘hide’ button relate to the function of twitter et al. by policing the overton window nowadays? If the choosing not to use the hide button on a reply, and that makes you responsible for its contents, why does Twitter still need to do the policing?

    • bj

      Also, am I getting this right that in a chain of tweets, when one of the replies has questionable content, all the people in the entire more recent part of that chain can each be individually held responsible?

      What if today, after having made aware of the issue, you ‘hide’ the reply? Does that work at all?

    • Jimmeh

      “What is the intention of the implementation of a ‘hide’ button?”

      I think it is a figleaf; the intention is to enable you to purport that you operate an open platform, while allowing astute readers to read everything that is posted.

      I used to volunteer for an open-posting radical political website called Indymedia. We used to hide posts that were manifestly false, or advocated violence, criminal acts, etc. The effect of hiding was that if you did manage to see the hidden post, it would appear as dark-grey text on a mid-grey background; and that the post would not be indexed by search-engines, so couldn’t be found in a Google search.

      This mainly worked. I don’t think we ever got a legal threat in connection with a hidden post (we regularly got empty threats of action against unhidden posts; we would simply point out that Indymedia had no assets and no funds, and we wouldn’t hear from them again).

      Sometimes someone would make a post containing addresses and phone-numbers, or possibly an obvious libel. In these cases we would blank the post, or edit it to remove the offending personal details; we did this not to avoiid legal consequences, but to protect the victim from vigilantes and crazy direct-action politicos. Such administrative edits would result in the original post not being visible at all.

      We never got sued or prosecuted; the site ran for ten years.

      I’m not sure what we would have done in the face of a court order not to report names, as in the Salmond case. I would have been in favour of redacting out the names, so they couldn’t be seen even if you were viewing a hidden article. I don’t know whether my associates would have shared my view.

      I would have opposed editing posts to prevent “jigsaw” identification; I would not have been OK with ccompromising our principles because of what might get posted on some other site.

      • Jimmeh

        But we did have our servers seized, on more than one occasion, on the grounds that the cops wanted to identify activists who had postesd to our site, and were suspected of criminal acts.

        That was massively inconvenient to us; but completely pointless, because we deliberately did not maintain website logs. There was no way to get the IP address of a poster, nearly everyone posted under a pseudonym, and it wasn’t possible to register on the site, so there was no database of registered users.

        • Jimmeh

          We used Apache; it’s true that vanilla Apache has no option to suppress logging.

          We took special technical measures to ensure the logs were not recorded to disk, so that logs ccouldn’t be recovered from a seized server. You can’t properly administer a webserver without logs, but ours existed in memory only (so they would vanish if you unplugged the server), and even in memory persisted for only an hour or so. The swap partition was encrypted, so you couldn’t get an image of memory from swap. I favoured disabling swap – you don’t need swap, when memory is as cheap as it is.

          Nobody’s IP address was ever compromised as a result of any of the the server seizures.

          Not all Indymedia collectives took these measures as seriously as we did, but most did.

      • bj

        I don’t think we ever got a legal threat in connection with a hidden post

        That cuts to my point: shouldn’t Craig first have gotten a heads-up, a warning: “there’s illegal content”, and then be given a chance to ‘hide’ (for what it’s worth) the reply.
        I.e., there’s time involved — the time to give the unwitting offender an opportunity to correct the issue.

        • Jimmeh

          Well, my view is that the “unwitting offender” is no offender. Someone who runs a blog with comments is not responsible for the comments that appear, if he makes reasonable efforts to clean up. “Reasonable” depends on the circumstances – whether it is possible to get enough moderators, how many comments get posted, etc.

          I’m strongly opposed to the idea that on a website with open commenting, the OP is responsible for the comments.We just tried to behave sensibly.

  • ET

    Is it possible from within your twitter account to know if you were to hide a reply how many people went ahead and read it anyway?

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