Not criminal, but defamatory?

Even where criminal consequences do not follow, lurking behind the scenes is the possible threat of defamation cases. In 2017 Monroe v Hopkins – a libel action brought by writer and food blogger Jack Monroe against the Daily Mail columnist Katie Hopkins – Mr Justice Warby, sitting in the High Court, warned that even where “a person can have a low opinion of another … the other’s reputation can still be harmed by a fresh defamatory allegation”.

The judge stressed that it also remains the “responsibility of the litigant to retain and preserve material that may become disclosable”. The judge also warned about the responsibilities that the claimant’s solicitor has in taking reasonable steps to make sure that their client understands this responsibility and carries it out. In other words it’s important not to delete potentially defamatory threads and to take screenshots of messages for possible use as evidence.

Encryption and recovery

Among other communication platforms, WhatsApp has in recent years implemented end-to-end encryption for messages. This ensures the messages are unreadable as they are transmitted via myriad private and public networks en route to the intended recipients. They are encrypted before they leave the source device and decrypted only once they reach their destination. While this should protect the messages in the event they are intercepted, messages may still be retrievable by using various forensic recovery methods.

Forensic recovery has featured in large-scale drug cases, indecent images and terrorism offences among others. Where devices are encrypted and passwords or keys are not provided, suspects may be served with a disclosure notice under Section 49 of the Regulatory of Investigatory Powers Act 2000. Failure to reveal such passwords attracts a criminal penalty.

In the absence of the key or password, there may still be a way to break into communications devices. The San Bernardino shootings in 2015 led the FBI to seek a court order against Apple to assist them in their efforts to unlock a deceased terrorist’s iPhone. In the event, the FBI withdrew their application after a third-party firm was reported to have broken into the handset on their behalf.

It is important to realise that once a message on social media is posted or sent, there is little or nothing the author can do to prevent it becoming part of the public record – whether that is due to its addition to a freely available and/or widely viewed social media profile, or because the receiving party, or the police, have produced it as evidence of wrongdoing. Months and even years later, when people have moved on with their lives, these can and do resurface with a wide range of consequences.

And it’s important to remember that the technology of today that is used to encrypt and protect our communications, may be no match for the technology of next week, month or decade, which might be used to defeat that protection, revealing past thoughts and opinions to the world.

This article was originally published on The Conversation. Read the original article.