The Enduring Principle of English Law in the Age of Social Media
By Ben Freeman.
One of the most well-known but frequently misunderstood maxims in English law is the principle that ignorance of the law is no defence. This doctrine, which has underpinned the legal system for centuries, holds that an individual cannot escape liability for breaking the law simply because they were unaware of its existence.
However, in an age where social media allows individuals to publish their thoughts to a global audience at a moment’s notice, the practical application of this principle has become increasingly complex.
The explosion of user-generated content has led to countless legal issues—ranging from defamation and contempt of court to harassment and incitement—often committed by people who do not realise they are breaking the law. And yet, the principle remains steadfast: ignorance of the law is no excuse.
This article will examine the legal basis of this principle, its interaction with the concept of the reasonable person on the Clapham omnibus, and why it has become so difficult for the modern public to grasp—particularly in the digital landscape where legal consequences can be severe, yet the understanding of the law is often lacking.
The Legal Principle: Ignorance of the Law is No Excuse
The maxim ignorantia juris non excusat (ignorance of the law excuses no one) is a fundamental principle of both common law and statutory interpretation. Its application ensures that individuals are held accountable for their actions, even if they claim they were unaware of the law.
The Basis in Law
While there is no single statute that codifies this principle in absolute terms, it is deeply embedded in both criminal and civil law. Courts have repeatedly reaffirmed it, with one of the clearest articulations found in the case of R v Esop (1836), where the defendant, a sailor, was convicted under English law for an act that was not illegal in his home country.
The court ruled that unfamiliarity with English law did not absolve him of responsibility. Similarly, in R v Bailey (1800), the court reinforced the idea that ignorance of a statute is not a valid defence, ensuring that legal liability cannot be evaded simply because someone was unaware of the law’s existence.
The only exception is where a specific law requires mens rea (a guilty mind) and the defendant’s lack of knowledge negates the required intent. However, in strict liability offences—such as many regulatory breaches and online publication laws—no such requirement exists.
The Role of the Reasonable Person on the Clapham Omnibus
The courts often apply the test of the reasonable person to determine whether an individual’s actions were lawful. This concept originates from McQuire v Western Morning News Co Ltd (1903), where Lord Bowen famously described
"The reasonable person as the man on the Clapham omnibus.”
The reasonable person is an objective legal standard—an ordinary, prudent individual who exercises common sense and understands the basic expectations of lawful conduct. The test is crucial in cases where a defendant claims they were unaware of a legal rule, as the question then becomes: would a reasonable person in the same situation have known the law or foreseen the consequences of their actions?
For example, if someone posts a defamatory statement online, they may argue they did not realise their comment was legally defamatory. However, under this test, the court will consider whether a reasonable person would have recognised that making false, damaging claims about another person could result in legal consequences.
The Modern Struggle:
A Digital Age of Instantaneous Speech
Despite its clarity in legal doctrine, the principle that ignorance is no defence is becoming harder for the general public to grasp. One of the key reasons is the rapid, unfiltered nature of online speech.
Social Media: The Perfect Storm for Legal Missteps
In the past, publishing defamatory statements, breaching court reporting restrictions, or inciting violence required access to mainstream media outlets or physical distribution. Today, anyone with a smartphone can instantly publish statements to millions, often without considering the legal implications.
The law applies equally to online speech as it does to traditional publication. Cases like Lord McAlpine v Bercow (2013) demonstrated how a single tweet can lead to a high-profile defamation lawsuit, even when the author did not explicitly name the claimant.
Similarly, contempt of court laws apply to online discussions. The 2012 case of Attorney General v Davey and Beard saw two jurors jailed for social media misconduct—one for posting comments about a case on Facebook and another for conducting independent online research. Both claimed they did not realise their actions were illegal, yet ignorance was no defence.
The Complexity of Online Law
While the reasonable person standard assumes a basic awareness of laws governing speech and conduct, the sheer volume of digital regulations makes this increasingly challenging.
Defamation: A person may believe they are simply expressing an opinion online, but if their statement falsely damages another’s reputation, they could face a libel lawsuit.
Contempt of Court: Social media users discussing ongoing criminal cases often do not realise they risk prejudicing trials, leading to contempt charges.
Harassment & Malicious Communications: Comments made in anger—such as threats, doxxing, or repeated messaging—can constitute criminal harassment, even if the author did not intend harm.
The problem is exacerbated by the perceived informality of online platforms, where people speak more candidly than they would in a courtroom, newspaper, or even in public conversation.
Conclusion: A Principle That Must Endure
The principle that ignorance of the law is no defence is a cornerstone of legal accountability. In the past, it was relatively straightforward: the reasonable person was expected to know that theft, assault, or fraud were illegal. Today, however, legal missteps are far easier to make, particularly in the digital sphere where laws governing online speech are complex and ever-evolving.
Yet the law does not—and cannot—change its fundamental stance. Whether in the physical or digital world, every person is assumed to have a basic understanding of what is legally acceptable. As social media continues to blur the lines between casual conversation and mass publication, individuals must take greater responsibility for what they say and do online.
The courts will not accept “I didn’t know that was illegal” as an excuse—because, in the eyes of the law, they never have.
Well, that’s all for now. But until our next article, please stay tuned, stay informed, but most of all stay safe, and I’ll see you then.
Bénédict Tarot Freeman
Editor-at-Large
VPN City-Desk
Dedicated to Marie.
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