The Law and Social Media

28 Oct 2016 Becca Cawthorne

A guest blog by Alan Earl, police officer seconded to the UK Safer Internet Centre.

Since their inception in 1986 the Crown Prosecution Service (CPS) has been the agency that conducts prosecutions across England and Wales. Although the Police can charge some lower level offences, for more serious or complex cases it is CPS lawyers making the decisions. Regardless of the seriousness or level, it is the CPS who lead the prosecution through the courts. Decisions made are based on two basic premises. Firstly, “Is there sufficient evidence for a realistic prospect of conviction?” and secondly, “Is a prosecution required in the public interest?”.

Those working within the legal profession will admit that law is often slow to change. Often they require Acts of Parliament or local statutes to change existing law. When you compare an often cumbersome process of law change with the ever fast moving growth of the internet, issues can be predicted. This is evident when crimes online have the capacity to target many and cause huge impact on the personal lives of some.    

Social media has created very few new crimes but it has changed and flexed the way crimes are committed. This is especially true in crimes where individuals are targeted. The impacts of these crimes on an individual’s time, livelihood or emotional state cannot be played down. 

The CPS along with the Police and other agencies now fully recognise the need to address cybercrime in a robust and active manner.

New Crown Prosecution Service social media guidance, published on 10 October this year has now set out the range of offences for which social media users could face prosecution.

In an effort to update guidelines on prosecutions involving Social Media (issued 2013) CPS made some revisions. These revisions were then put out for consultation on 3rd March 2016 for ten weeks. Full details can be found via the above link. I will however attempt to highlight some of the content of the now finalised advice that may interest readers.

The advice for prosecutors falls into a number of categories but numbers 2 and 4 are of relevance here.

  • Threats
  • Communications targeting specific individuals
  • Breach of Court Orders and Statutory Prohibitions
  • Communications which are Grossly Offensive, Indecent, Obscene or False.

Our Professionals Online Safety Helpline operated by the South West Grid for Learning (SWGfL) on behalf of the UK Safer Internet Centre often receives pleas for help from specific individuals who feel they are being stalked or harassed and asking for advice. This is how the CPS describes what can be involved and the section below further outlines the laws/process to be considered in a prosecution decision.

Harassment or Stalking

The CPS recent guidance defines:

“Harassment can include repeated attempts to impose unwanted communications or contact upon an individual in a manner that could be expected to cause distress or fear in any reasonable person. It can include harassment by two or more defendants against an individual or harassment against more than one individual”.

More complex however and one aspect that plays out online is coercive behaviour, sometimes not even recognised by the victim. The law has now recognised that part of this can relate to online relationships. Control over social media and who the victim can connect with and what they are allowed (or not) to say will have a huge impact on an individual’s freedoms.  The advice for the lawyers around prosecution in this is very long and complex and the Serious Crime Act law enacted in December 2015 needs to be taken into account.  To give you a flavour here is the beginning of the advice.

Controlling or Coercive Behaviour

“Communications sent via social media may alone, or together with other behaviour, amount to an offence of Controlling or coercive behaviour in an intimate or family relationship under section 76 of the Serious Crime Act 2015. The offence came into force on 29 December 2015 and does not have retrospective effect.

The offence only applies to offenders and victims who are personally connected: in an intimate personal relationship; or they live together and they have previously been in an intimate personal relationship; or they live together and are family members.

The controlling or coercive behaviour in question must be repeated or continuous, it must have a serious effect on the victim, and the offender must know or ought to know that the behaviour will have such an effect. A “serious effect” is one that either causes the victim to fear, on at least two occasions, that violence will be used against them, or it causes the victim serious alarm or distress that has a substantial adverse effect on their usual day-to-day activities.

The patterns of behaviour associated with coercive or controlling behaviour might include: isolating a person from their friends and family, which may involve limiting their access to and use of social media; depriving them of their basic needs; monitoring their time; taking control over where they can go, who they can see, what to wear and when they can sleep. It could also include control of finances, such as only allowing a person a punitive allowance, or preventing them from having access to transport or from working”.

It is worth reiterating the advice below from CPS for prosecutors on ‘revenge porn’ especially as the Revenge Porn helpline at SWGfL is very busy dealing with victims of this particularly nasty offence.

False or Offensive Social Media Profiles

Interestingly, CPS have now identified the legal tools around false or offensive social media profiles. Therefore tackling the problem of ‘spoof ‘ sites.  

Social media platforms usually require people to use their real or authentic identity. This creates a safer space for users and enables platforms to detect accounts created for malicious purposes, making it harder to use an anonymous name to bully or engage in criminal behaviour.

The act of setting up a false social networking account or website, or the creation of a false or offensive profile or alias could amount to a criminal offence, depending on the circumstances.

For example:

  • The former estranged partner of a victim creates a profile of the victim on a Facebook page to attack the character of the victim, and the profile includes material that is grossly offensive, false, menacing or obscene.
  • A “photoshopped” (i.e. digitally edited) image of a person is created and posted on a social media platform. Although many photoshopped images are humorous and inoffensive, others are disturbing or sinister, such as the merging of a person’s face with the nude body of another to create obscene images, which may be accompanied by offensive comment.

Disclosing private sexual images without consent

Section 33 of the Criminal Justice and Courts Act 2015 creates an offence of disclosing private sexual photographs or films without the consent of an individual who appears in them and with intent to cause that individual distress.

The offence is known colloquially as “revenge pornography” and is a broad term, which usually refers to the actions of an ex-partner, who uploads onto the internet, posts on a social networking site or shares by text or email intimate sexual images of the victim. The aim of revenge pornography is usually to cause the victim humiliation or embarrassment.

The offence will cover anyone who re-tweets or forwards a private sexual photograph or film without consent if the purpose was to cause distress to the individual depicted in the photograph or film. However, anyone who sends the message only because he or she thought it was funny would not be committing the offence.

In discussing communications which could be considered grossly offensive, indecent, obscene or false the CPS discuss a wide range of factors. By necessity Article 10 of the European Human Rights Act (freedom of speech) puts a range of subjectivity and blurred lines into what can be considered offensive, indecent, obscene or false. 

Context and Approach

Context is important and prosecutors should have regard to the fact that the context in which interactive social media dialogue takes place is quite different to the context in which other communications take place. Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous. Communications intended for a few may reach millions. As Eady J stated in the civil case of Smith v ADVFN [2008] 1797 (QB) in relation to comments on an internet bulletin board:

“… [they are] like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’.”

Against that background, prosecutors should only proceed with cases under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than:

  • Offensive, shocking or disturbing; or
  • Satirical, iconoclastic or rude comment; or
  • The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

If so satisfied, prosecutors should go on to consider whether a prosecution is required in the public interest.

The Public Interest

Every day many millions of communications are sent via social media and the application of section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 to such comments creates the potential that a very large number of cases could be prosecuted before the courts. Taken together, for example, the following social media platforms are likely to contain hundreds of millions of communications every month: Facebook; Twitter; LinkedIn; YouTube; WhatsApp; Snapchat; Instagram and Pinterest.

In these circumstances there is the potential for a chilling effect on free speech and prosecutors should exercise considerable caution before bringing charges under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. See further the section below on Article 10 ECHR.

The law is often complex and no less so around online offences. There are often older laws that can still be applied with vigour to the online issues we face. New laws however may be required in some areas and as such the CPS are vital to applying them. Training of front line service staff around online laws and issues remains paramount to match the constant flux of our internet lives.

This is just a small part of the advice issued by the CPS and not meant to be exhaustive. If you are interested in the law and changes please read the whole advice. 

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