Tweeting without consent? Police use of social media has proved controversial.

Comment: After Ashya, can the police be trusted with a Twitter account?

Comment: After Ashya, can the police be trusted with a Twitter account?

By Jane Fae

(Article updated – see below)

Should the police use Twitter? On the one hand, it is clearly a useful tool and we have all become so used to various police forces tweeting out appeals for help that, for most people, it is scarcely an issue.

But it can become one, as happened earlier in the year when concerns were raised that the Met police's helicopter division were using Twitter to bully critics.

In twitterspeak: they were dot-@ing their response to criticism, so encouraging their not inconsiderable tally of 91,000 followers to "pile on" to anyone who dared to question their activities. When called on this, they claimed it was all misunderstanding – and merely amended their profile to state they reserved the right to "respond publically to tweets".

The information commissioner felt the need to have words with Staffordshire police when they used the Twitter hashtag #DrinkDriversNamedOnTwitter when publishing details of individuals who had only been charged – not convicted. The insinuation of guilt was felt to sit uncomfortably alongside the Data Protection Act's requirement of fair and lawful processing.

And then there’s Ashya King, currently languishing in a Spanish hospital while his parents await the pleasure of a Madrid court, following their arrest under a European Arrest Warrant. Their crime? Following disagreements with the staff at Southampton General Hospital, they decided that their son, who has been given just four months to live, might fare better with an experimental treatment being pioneered elsewhere in Europe.

They therefore removed their child from care – as they are entitled to do – and made their way to Spain where they hoped to sell property in order to fund his treatment.

They might be mistaken in their views, but they had done nothing unlawful.

This, however, did not prevent Hampshire police from tweeting last week that: "Ashya was taken without consent yesterday afternoon at about 2pm by his parents and it's thought they are in France”. This they then followed up with a series of mugshots and a “be on the lookout" alert not unlike the approach you might associate with pursuit of hardened criminals.

Press coverage, unsurprisingly, set off down the moral high road. Clearly feckless parents up to no good! Although even then, some legal commentators were asking awkward questions, which closely mirrored questions asked of Hampshire police on Twitter in respect of their "without consent" tweet.

Neither police nor hospital staff are entitled to prevent parents from acting in this way without a court order in place. So in what way, precisely, were they acting "without consent".

Although they returned to this story on several occasions throughout the weekend, no-one in charge of the Twitter account appeared remotely inclined to answer that question.

When the same question was put to Hampshire police on Monday morning, their first response was to argue that they were very busy with the urgent task of dealing with the child's welfare. So, they'd get back if they could.

By lunchtime, their story, like a bad alibi, had changed again. Now, it appears, court action is imminent. So they are adding nothing to what they have already said. Perhaps the matter is "sub judice", translated by a friendly barrister as a Latin phrase meaning "we really don't want to answer that, please leave us alone".

Meanwhile they had found time to take down the offending tweet, which is therefore reproduced below in case anyone missed it the first time round.

So what is the legal position? What are the rights and wrongs here?

According to the Information Commissioners Office: "The Data Protection Act requires people's information to be handled fairly and lawfully. Police forces need to be careful when naming individuals on Twitter who have not been found guilty of any offence in order to ensure they are meeting this requirement.

“We have previously highlighted to ACPO [the Association of Chief Police Officers] the need for forces to make sure they are not breaching the Act when using this channel.”

ACPO guidelines state "save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public". 

The Data Protection Act also allows police wide leeway to use information in order to investigate or prevent the commission of a crime.

But – as widely noted already – no crime has yet been committed. It is possible that later legal hearings will retrospectively justify the police treatment of this as a case of neglect, but that seems very shaky ground for issuing of an arrest warrant and a Europe-wide manhunt.

The problem really lies in that "without consent" tweet. 

In the pre-internet days, had a police officer said that on the record to a journalist, they would have been challenged, either right away or by the journalist's own legal team. They'd have been hard pressed to get away with it for more than half a minute.

The police might still have sent out an all-points bulletin to other forces, but that would have been an internal document. Again, police officers would have scrutinised carefully what was said and why.

Whereas a tweet…well, that's round the world, as they say, before the truth has got its boots on.  Retweeted, too, not just by other police forces but by members of the public.

According to the Information Commissioner's Office, the police could be justified in using Twitter where they felt this would aid them in their duty to ensure that the welfare of the child is safeguarded. This is quite separate from questions of whether a crime has or has not been committed.

However, it adds: "The force would have needed to make sure that the level of information being released was proportionate to the problem it was trying to address".

And there's the rub. It is not just releasing the fact that they were looking for Ashya that is being challenged: it is the fact that they put out misinformation about the nature of their search. They insinuated very clearly that the family had removed a child "without consent".

Other forces simply passed that line on without any challenge because, well, they would wouldn't they? One force tweets, other forces simply assume it is a justifiable statement. Even if Hampshire police had taken proper steps to ensure their information release was proportionate, did other forces take equally proper steps? That seems unlikely.

It leaves us with the uncomfortable reality that Hampshire police, far from apologising for their initial tweet, have justified it. Should they really be allowed loose on Twitter?

Jane Fae is a writer on gender and technology issues. You can follow her on Twitter here.

The opinions in's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

Update 16:17 BST:

Further evidence that Hampshire police may not be entirely confident in their use of Twitter emerged with the discovery that they had not been tweeting on their main account (@HantsPolice) since 9.03 am yesterday. Had they abandoned or stood down the account?

A spokesperson for Hampshire Police told us: "[We] can assure you we haven't stopped tweeting. We often tweet from our local accounts (ie Winch rural) rather than use our main account for everything".

Prior to this weekend, however, the account did appear to be in use on a daily basis.

It may be, however, that the @HantsPolice account is temporarily unusable, by virtue of the sheer volume of hostile comment directed at it since the weekend.

For instance, a simple tweet, dated August 30, about the state of the southbound A34 has been populated with comments such as: "You lied about Aysha, how do we know you're not lying about this?"