Thursday, September 24, 2015
Social Media Crime - prosecutions for use
There has been a lot of recent press about prosecutions brought over of use of the Internet- from the prosecution of Internet ‘trolls’ to the increasing reporting of ‘revenge porn’ there is an increasing trend towards prosecuting individuals for their online activity.
But questions remain for the lay person. When am I in danger of prosecution for posts made online? What do I do if the police want to speak to me? What constitutes criminal behaviour online?
This article aims to give some guidance on the increasingly complex relationship between the Internet and the Criminal Law.
The following labels have been applied to use of the Internet; these are the areas that the Police and the CPS view as worthy of investigation and prosecution:
(a) cyber bullying—bullying conducted using the social media or other electronic means;
(b) revenge porn—usually following the breakup of a couple, the electronic publication or distribution of sexually explicit material (principally images) of one or both of the couple, the material having originally been provided consensually for private use;
(c) trolling—intentional disruption of an online forum, by causing offence or starting an argument; and
(d) virtual mobbing—whereby a number of individuals use social media or messaging to make comments to or about another individual, usually because they are opposed to that person's opinions.
Cyber offences- the Law
Above I have listed the colloquial problematic areas of Internet use but how does that translate into offences under the Criminal Law? After all, the criminal Law is not concerned with how an offence was committed but whether it was committed! Harassment, malicious communications, stalking, threatening violence, incitement are all crimes and have been for a long time.
Different sorts of conduct can give rise to different sorts of potential offences but cyber-offences using social media or other forms of electronic media can be generally classified into groups. This article does not have the scope of investigating each of these offences, if proceedings are contemplated or have been brought please contact Quentin for more details. These offences can be classified as follows:
(a) Credible threats of violence to the person or damage to property:
(i) Offences Against the Person Act 1861, s 16 (threat to kill)
(ii) Protection From Harassment Act 1997, s 4 (fear of violence)
(iii) Malicious Communications Act 1988, s 1 (threat)
(iv) Communications Act 2003, s 127 (of a menacing character)
(v) together with legislation related to racial, religious, disability, sexual orientation or transgender aggravation
(b) Communications targeting specific individuals:
(i) Protection from Harassment Act 1997, s 2 (harassment)
(ii) Protection from Harassment Act 1997, s 2 (stalking)
(iii) Protection from Harassment Act 1997, s 4 (fear of violence)
(iv) Protection from Harassment Act 1997, s 4A (stalking involving fear of violence, serious alarm or distress)
(c) Breach of court order, e.g. as to anonymity:
(i) Contempt of Court Act 1981
(ii) Sexual Offences Amendment Act 1992, s 5 (identification of a victim of a sexual offence)
(iii) restraining orders, conditions of bail
(d) Communications which are grossly offensive, indecent, obscene or false:
(i) Malicious Communications Act 1988, s 1 (electronic communications which are indecent or grossly offensive, convey a threat false, provided that there is an intention to cause distress or anxiety to the victim)
(ii) Communications Act 2003, s 127 (electronic communications which are grossly offensive or indecent, obscene or menacing, or false, for the purpose of causing annoyance, inconvenience or needless anxiety to another)
Obviously the type of offence that has been potentially committed will depend upon the individual facts of the case and the view of the prosecution authorities. If you find yourself investigated by the police in respect of potential cyber-offences you should seek specialist legal advice.
Freedom of expression: an important defence
In addition to the usual defences available to the above offences Article 10 of the European Convention on Human Rights provides a right to freedom of expression, this has been approved by the Courts in various cases:
"Freedom of expression constitutes one of the essential foundations of a democratic society … It is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb …" (Sunday Times v UK (No 2)  14 EHRR 123)
"Satirical, or iconoclastic, or rude comment, the expression of unpopular of unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003]" (Chambers v DPP  EWHC 2157(Admin), LCJ)
"There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates." (DPP v Collins  UKHL 40, Lord Bingham of Cornhill)
This means that prosecutors need to be very careful when launching criminal proceedings; strong submissions can be made on behalf of those accused of internet based crime that proceedings should not be brought in the first place. In consideration of whether to launch a prosecution the Director of Public Prosecutions' guidance requires prosecutors to take this into account:
"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."
"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 that there is sufficient evidence that the communication in question is more than:
- offensive, shocking or disturbing;
- satirical, iconoclastic or rude; 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.
This can form the basis of a powerful argument that no proceedings should be brought against a client for opinion based activity undertaken online.
The internet is a fast moving and fluid environment every new site for the sharing of expression and media brings with it a new set of potential problems and liabilities under the Criminal Law. This article has tried to pull together as many strands of the law and the background online as possible however it is inevitable that each case will have its own fact specific problems and possible solutions. If you find yourself in a legal situation involving potentially malicious use of the Internet you should see advice from a suitably qualified legal expert as soon as possible. You may contact Quentin Hunt, a specialist Barrister at 2 Bedford Row Chambers for such an opinion and a friendly no obligation conversation about your situation.