Crime on the social networks

The Crown Prosecution Service has recently published guidelines for prosecutors in relation to the increasing number of complaints for crimes perpetrate from communications via social media.

The augmentation of social media has seen a dramatic rise in reports of alleged crimes and the Police have been face with an increase in allegations from 556 reports and 26 people charged in 2008, to 4,908 allegations and 653 people charged in December 2012 alone.

A spokesman for the Association of Chief Police Officers said that it was important that Police prioritise social networking crimes which “caused genuine harm” but went on to say: “We need to accept that people have the right to communicate, even to communicate in an obnoxious or disagreeable way, and there is no desire on the part of the Police to get involved in that judgement”.

This article seeks to examine the areas where there will be reasons for genuine complaint and the likelihood of prosecution, rather than the more salacious issues that have faced civil recourse in action of defamation.

The Director of Public Prosecutions’, (DPP) Keir Starmer QC, initial assessment concentrated on communications sent by social mediawhich constitute;

1. credible threats of violence to the person or damage to property,

2. which specifically targets an individual or individuals; and may constitute harassment or stalking with the meaning of the Protection fromHarassment Act 1997,

3. or are breaches of a Court Order,

4.and finally, those communications which do not fall in to any of the above categories, but are grossly offensive, indecent, obscene or false.

The first three categories will be prosecuted robustly and will be perhaps easier to identify.

However the final category will attract a higher evidential threshold and in many cases a prosecution is unlikely to be in the public interest.

This area perhaps attracts those difficult issues where the boundaries of social comment, however unpleasant and disagreeable, should not attract the prosecution through the courts.

This was seen in the case of Paul Chambers, who was prosecuted for tweeting in frustration when he was delayed at Robin Hood Airport in South Yorkshire because of snow; “crap Robin Hood Airport is closed you’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high”. The Lord Chief Justice concluded that the message was not of a menacing character and allowed his appeal against conviction.

This contrasts with 24-year old Michaela Turner who was given a suspended sentence for posting offensive material on Facebook following the killing of Drummer Lee Rigby in Woolwich. This included writing onher status update; “Feeling like burning down some mosques in Portsmouth anyone want to join me?”

The test for the final category will be whether threats are credible, and if not, an individual should not be prosecuted unless they form part of a campaign of harassment specifically targeting an individual, which would fall within Section 4 of the Protection from Harassment Act.

Aggravating factors may relate to hostility or prejudice, which prosecutors will pay particular regard to.

The DPP rightly identifies that there will be casesthat may give rise to complex issues, but wishes to avoid the potentially chilling effect that might rise from high numbers of prosecutions in cases where communication might be considered grossly offensive; “We must recognise the fundamental rights of freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it.”

The behaviours that don’t fall in to the category of harassment, threats of violence, or a breach of a particular court order as detailed on the Contempt of Court Act 1981 or Section 5 of the Sexual Offenders Amendment Act 1992 (which makes it an offence to publish material which may lead to the identification of a victim of a sexual offence), may fall under the category of communications which are grossly offensive, indecent, foreseen or false. This is dealt with specifically under Section 1 of the Malicious Communications Act 1988 or Section 127 of the Communication Act 2003.

It is such communications that attract the highest threshold at the evidential stage and these communications which draw the greatest debate in relation to freedom of speech. The number of communications on channels such as Facebook, Twitter, LinkedIn and YouTube, amongst others, amounts to many hundreds of millions every month. It is with this in mind

and the impact of Article 10 of the European Convention on Human Rights which protects not only speech which is well received and popular, but also speech which is offensive, shocking or disturbing; (Sunday Times V UK) (No 2)(1992 14 EHRR 123).

The Law Chief Justice summarised this position in Chambers v DPP 2012 EWHC 2157; “Satirical or iconoclastic, or rude comment, the expression of unpopular or 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 the customary level quite undiminished by it”.

As Lord Bingham said in DPP Collins (2006) UKHL 40; “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”.

This effectively says that banter, jokes and offensive comments in common usage, which are frequently spontaneous, should be judged in contextwhen proceeding with a prosecution. In considering whether a prosecution is necessary and proportionate, it will be relevant if the suspect expressed genuine remorse and swift and effective action is taken by the suspect and/or others, including those cases where service providers have removed the communication in question or otherwise blocked access to it. Furthermore, where the communication is not intended for a wide audience, such as communications sent to just a small group of people, or where the intended audience does not include the victim or target of the communication in question, broadly speaking,prosecution is unlikely if the content of the communication would not go beyond being conceivably tolerable or accepting in an open and diverse society upholding and respecting freedom of expression. More importantly this is not prescriptive and each case will be considered on its own facts and individual merits.

Different considerations will come into effect where there is a hate crime element, repetition of the offence or persistent use of a particular electronic communication for the purpose of causing annoyance, inconvenience or needless anxiety to another. Prosecution is also unlikely in the use of social media by children whomay not appreciate the potential harm

and seriousness of their communication, as such prosecution is not likely to be in the public interest.

Woodfines has an experienced Crime and Regulatory team always available for advice should you face prosecution or investigation for any of the offences described above: www.woodfines.co.uk

Tim Norris can be contacted by telephone on 01223 411421 or by email at [email protected]. Woodfines have offices in Bedford, Milton Keynes, Cambridge and Sandy.