CHAPTER 2: SOCIAL MEDIA AND THE LAW
Social media and offences
7. The social media are a recent invention. The
two most popular websites, Facebook and Twitter, were founded
in 2004 and 2006 respectively. They may be new, but they are big.
1.2 billion people regularly use Facebook, 34 million of them
in the UK; 255 million regularly use Twitter, 15 million of them
in the UK. 500 million "tweets" are made a day.[2]
In addition to these well-known providers, there are many other
social media forums, based all over the globe, with different
focuses of activity (from flower arranging to sadomasochism),
all with the purpose of "social networking", of connectivity:
enabling people to express themselves and interact using the internet.
8. As we heard from John Cooper QC, "the
vast majority of people who use the social media are like society.
The vast majority are decent, intelligent, inspiring people. The
problem comes with a small minority, as in society, who spoil
it for everyone else."[3]
9. Amongst the ways in which people are spoiling
it for everyone else are the following behaviours:
(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.
These definitions are our own and imprecise; others
use these words to mean different and overlapping things.
10. In addition to these apparently modern offences,
most offences which can be committed by using words or images
can be committed using the social media, for example threatening
violence to the person.
The law: facts
CRIMINAL OFFENCES
11. Criminal offences define acts (or omissions)
which are so harmful that the wrong is thought to be against the
state rather than the individual who has suffered the act; the
state prosecutes and, on conviction by a court, the state punishes,
by deprivation of liberty, fine or other means.
12. There are two different ways to think about
the harmful acts committed using social media: either they are
new acts, or they are acts already prohibited by the criminal
law but committed in the new forum of social media as opposed
to elsewhere. We have been persuaded that the latter is usually
the case. "The social media is simply a platform for human
beings to behave or misbehave"[4];
"It is not about the medium, it is about the offence".[5]
13. Harassment, malicious communications, stalking,
threatening violence, incitement are all crimes and have been
for a long time.
14. The Director of Public Prosecutions has published
guidelines for the application of the current statute law to prosecutions
involving social media communications. The guidance is clear and
accessible. The guidance is structured by conduct, relating different
sorts of conduct to different potential offences:
(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)
These offences all pre-date the invention of social
media. These offences are offences under the law of England and
Wales; we have not considered the position in Scotland or Northern
Ireland. A table of our own design showing these offences and
their relationship to social media is at Appendix 3.
15. The Protection from Harassment Act 1997 also
provides for civil remedies in the form of injunctions and damages,
on application to the High Court, to protect a person from harassment.
16. As this report sets out, there are aspects
of the current statute law which might appropriately be adjusted
and certain gaps which might be filled. We are not however persuaded
that it is necessary to create a new set of offences specifically
for acts committed using the social media and other information
technology.
17. Despite calls in oral evidence to the
contrary, we have not been persuaded that it is always desirable
to remove overlaps: we understand that overlaps commonly occur
in the criminal law[6]
and are usually necessary to provide for different circumstances.
18. Similarly, we see no special need to codify
or consolidate all offences which can be committed using social
media: it is no more desirable to do so for these offences than
for any other part of the criminal law.
19. The Director of Public Prosecutions publishes
statistics which show by year the number of offences charged and
reaching a first hearing, by reference to the statutory provision
creating the offence. There are at present no statistics which
indicate the balance of offences committed online and by traditional
means, nor of the number of offences reported. We have anecdotal
evidence as to the scale of the problem, but few facts. It
would be useful for such statistics to be compiled.
DEFAMATION
20. Social media can just as readily be used
to defame (bringing ill fame or dishonour upon) someone as can
any other media. Defamation has not been an offence since commencement
of section 73 of the Coroners and Justice Act 2009. Defamation
remains privately actionable in the High Court (i.e. civil courts),
with no limit to the damages available as a remedy. There is no
longer any distinction between slander (oral defamation) and libel
(defamation through other media). This report is not about defamation.
FREEDOM OF EXPRESSION
21. The United Kingdom is a signatory to various
international obligations which secure freedom of expression.
Article 10 of the European Convention on Human Rights maintains
that "everyone has the right to freedom of expression"
and that that right may only be qualified in narrowly limited
circumstances. Those circumstances include national security,
public safety, the protection of morals, and the protection of
the reputation or rights of others". Box
1: ECHR Article 10—Freedom of expression
| 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
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22. The Human Rights Act 1998 requires judges
to interpret legislation in a way which is compatible with the
Convention rights so far as it is possible to do so. This means
that all of the offences described at paragraph 14 must be
interpreted still to give effect to Article 10. The restrictions
this places on the offences and on freedom of expression is explored
by the courts case-by-case. It is most relevant to considering
prosecution of communications which are grossly offensive, indecent,
obscene or false. The courts have said:
"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) [1992] 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 [2012] 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 [2006] UKHL 40, Lord Bingham
of Cornhill)
23. Article 19, a freedom of expression organisation,
argued that, due to this international obligation, it was not
legitimate to prosecute offences of sending a grossly offensive
communication unless the communication had threatened violence.[7]
John Cooper QC qualified this by saying that psychological
violence was violence, at least for some offences.[8]
24. In addition to the requirement for compatibility
with the ECHR, the Director of Public Prosecutions' guidance requires
prosecutors to take into account context:
"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."
25. It quotes Mr Justice Eady in the High
Court giving his opinion as to the nature of comments on an internet
bulletin board as being:
"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'."
(Smith v ADVFN [2008] 1797(QB))
26. The Director's guidance says that, in consequence:
"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."
27. In contrast, the Chief Constable of Essex
observed to us that social media commentary has a permanence,
whereas the same comments in "a playground, coffee shop or
pub" are transient and forgotten within moments.[9]
28. We consider that today's users of social
media and other information technology should be well aware that,
in certain forums, they are capable of having a huge audience,
invited and uninvited; known and strangers; anonymous and identified.
29. Similarly, today's users should also be aware
that the major website operators enable their users to protect
themselves if they wish to do so, principally by adjusting their
"privacy settings", for example to make their profile
visible only to people they have explicitly approved.
30. Although we accept that social media are
not entirely analogous to a public bar (because the comments endure
unless removed by the website operator), we consider that the
Director's guidance appropriately takes account of freedom of
expression.
The law: opinion
31. In this section, we offer our opinion on
the adequacy of the statute book in relation to criminal offences
and social media.
"CYBER BULLYING" AND "TROLLING"
32. Our starting point is that what is not
an offence off-line should not be an offence online. There is
no specific criminal offence of bullying.[10]
We consider that the current range of offences, notably those
found in the Protection from Harassment Act 1997, is sufficient
to prosecute bullying conducted using social media. Similarly,
sending a communication which is grossly offensive and has the
purpose of causing distress or anxiety is an offence under section
1 of the Malicious Communications Act 1988. Although we understand
that "trolling" causes offence, we do not see a need
to create a specific and more severely punished offence for this
behaviour.
"VIRTUAL MOBBING"
33. John Cooper QC considered that the current
form of the Protection from Harassment Act 1997 was sufficient
for the prosecution of virtual mobbing.[11]
Section 4A of the Public Order Act 1986 might also be relevant.
For the 1997 Act, a "course of conduct" is however a
necessary ingredient of the offence. A course of conduct "must
involve conduct on at least two occasions". If 100 people
send a single abusive tweet each to one person, it is not clear
whether any offence has been committed under the 1997 Act.
34. There is a long-standing common law concept
in criminal law of "joint enterprise", whereby all members
of a group acting with common purpose and common intention may
be held liable for the consequences of their actions. We do
not see why the common law principle of joint enterprise should
not apply to offences committed under the Protection from Harassment
Act 1997 and similar legislation, so enabling the prosecution
of members of a group acting with common purpose and intention.
The courts will determine whether joint enterprise catches instances
in which the people involved did not know each other and acted
at different times and in different places.
REVENGE PORN
35. The treatment of incidents of "revenge
pornography" (defined at paragraph 9(b)) deserves further
consideration.
36. The first question that arises in our mind
is whether the behaviour (i.e. revenge porn) is already caught
by one of the existing offences and, if not, whether it ought
to be criminalised.
37. In a recent debate on the question, the Minister
said that offences created by section 127 of the Communications
Act 2003, the Protection from Harassment Act 1997 and the Malicious
Communications Act 1988 were all relevant. [12]
Section 127 of the 2003 Act provides that is an offence to send:
by means of a public electronic communications
network a message or other matter that is grossly offensive or
of an indecent, obscene or menacing character
Section 1 of the 1988 Act provides that it is an
offence to send:
a [communication] which is indecent or grossly
offensive; a threat; or information which is false and known or
believed to be false by the sender; [if his purpose is that] it
should cause distress or anxiety to the recipient or to any other
person to whom he intends that it or its contents or nature should
be communicated
38. The offences are triable in the magistrates'
court and a person found guilty of such an offence is liable to
up to 6 months' imprisonment, a level 5 fine (up to £5,000)
or both.
39. Clause 27 of the Criminal Justice and Courts
Bill, currently before the House, proposes to i) make the offence
and the 1988 Act triable in either the magistrates' court or the
Crown Court; and ii) increase the available sentence on conviction
by a magistrates' court to 12 months' imprisonment, a fine or
both; and by the Crown Court to 2 years' imprisonment, a fine
or both. Notwithstanding our observation at paragraph 49,
we consider this new flexibility to be desirable.
40. Revenge pornography is not directly considered
in the Director of Public Prosecutions' guidance for prosecutions
involving social media communications. The Director's separate
guidance on the prosecution of offences relating to obscene publications
sets out a general reluctance to prosecute (especially where the
subjects consent to the behaviour) other than where a publication
portrays illegal or extreme sexual acts. Ordinary images of consensual
sexual acts are not considered obscene. We would welcome clarification
from the Director of Public Prosecutions as to the circumstances
in which an indecent communication could and should be subject
to prosecution under section 127 of the Communications Act 2003
or section 1 of the Malicious Communications Act 1988.
41. Irrespective of the commission and prosecution
of a criminal offence, a private remedy is already available to
the victim. Images of people are covered by the Data Protection
Act 1988 (as "personal data"), and so is information
about people which is derived from images.[13]
Images of a person count as "sensitive personal data"
under the Act if they relate to "sexual life". Under
the Act, a data subject may require a data controller not to process
the data in a manner that is "causing or is likely to cause
substantial damage or substantial distress to him or to another".
The Information Commissioner may award compensation to a person
so affected. Personal data "processed by an individual only
for the purposes of that individual's personal, family or household
affairs (including recreational purposes)" are exempt from
this provision but the European Court of Justice has determined
that posting material on the internet is not part of one's "personal,
family or household affairs"[14].
42. In addition, since the judgment of the European
Court of Justice in the Google Spain case, data subjects have
the right to ask search engines to remove links to certain data
relating to the data subject:
"… it should inter alia be examined
whether the data subject has a right that the information in question
relating to him personally should, at this point in time, no longer
be linked to his name by a list of results displayed following
a search made on the basis of his name, without it being necessary
in order to find such a right that the inclusion of the information
in question in that list causes prejudice to the data subject.
As the data subject may, in the light of his fundamental rights
under Articles 7 and 8 of the Charter, request that the information
in question no longer be made available to the general public
on account of its inclusion in such a list of results, those rights
override, as a rule, not only the economic interest of the operator
of the search engine but also the interest of the general public
in having access to that information upon a search relating to
the data subject's name. However, that would not be the case if
it appeared, for particular reasons, such as the role played by
the data subject in public life, that the interference with his
fundamental rights is justified by the preponderant interest of
the general public in having, on account of its inclusion in the
list of results, access to the information in question"[15]
This is a useful, if after the event, protection
in cases where the website operator refuses to remove the information.
43. An individual may also apply to the High
Court for a privacy injunction to prevent or stop the publication
of material relating to a person's sexual life. This was successfully
done in the case of Contostavlos v Mendahun ([2012] EWHC
850 (QB)): the court granted the claimant an injunction to prevent
the publication by the defendants of a video showing the claimant
and defendant having sexual intercourse, which one of the defendants
proposed to publish in the circumstances common to revenge porn.
The case was set to involve consideration of damages but settled
before the court had to determine the question.
44. We are concerned that the latter remedy is
available only to those who can afford access to the High Court.
It would be desirable to provide a proportionately more accessible
route to judicial intervention.
TIME FOR AUTHORITIES TO INVESTIGATE
BEFORE PROSECUTION
45. For most of the offences with which we are
here concerned, the prosecution must start (usually the laying
of an information in a magistrates' court) no later than six months
after the offence took place. That period is set by section 127
of the Magistrates' Court Act 1980. The Chief Constable of Essex
asked for website operators to respond faster to requests for
evidence.[16] The Director
of Public Prosecutions asked for longer because it could take
longer than that to obtain information from website operators
abroad.[17] We sympathise
with this perspective and suggest that 12 months would be proportionate.
46. There is little point in extending this
time limit unless the data exist. It would obviously facilitate
the detection and prosecution of crime if operators of social
media websites were required to capture and retain evidence of
the traffic on their sites. This though raises the much broader
and exceptionally contentious issues around communications data.
OTHER
47. A number of statutes passed before the
invention of the internet refer to publications in terms only
of print media. For example, section 39 of the Children and Young
Persons Act 1933 restricts reporting by newspapers in relation
to children involved in criminal proceedings: electronic communications
and social media are not caught; we believe they should be.
48. The offences with which we are concerned
involve both the act and the nature of the intention on the part
of the person committing the act (the "mens rea").
This latter aspect varies between offences and might benefit from
a degree of consistency.
49. There are often calls to increase the
severity of sentence available for the punishment of these sorts
of offences. We favour increasing the courts' discretion in this
area but we would be reluctant for Parliament to require more
cases to be tried in the Crown Court (i.e. judge and jury as opposed
to magistrates), due to the implications for workload. Any increase
in flexibility should be carefully monitored and the proportionality
of the consequences considered.
ANONYMITY
50. The internet readily facilitates its users
doing so anonymously. Although it is possible to identify (including
retrospectively) which computer in the world was used to post
a statement (because each computer has a unique "internet
protocol address"), it is not necessarily possible to identify
who used that computer to do so.
51. This is in part because many website operators
facilitate the anonymous use of their service. There is no consistent
attitude taken by website operators: some require the use of real
names (Facebook, although they do not actively confirm users'
identities); some allow anonymity but challenge impersonation
(Twitter)[18]; others
allow absolute anonymity. Google+ abandoned its real name policy
and apologised for having tried to introduce one. [19]
52. Twitter drew to our attention the value of
anonymity for human rights workers, dissidents and journalists
working in conflict areas: it enables them to publish information
and opinion without placing themselves at risk.[20]
53. There is a less positive side to this disinhibiting
effect of anonymity, with its lack of apparent accountability
and immediate confrontation: it facilitates offensiveness, notably
in the forms of cyber bullying and trolling. ask.fm is a Latvian-based
social networking site where users can ask each other questions
with the (popular) option of anonymity. The site is popular with
British teenagers and is sadly infamous for the bullying conducted
using it and for the consequences of that bullying. In 2012, Erin
Gallagher committed suicide at the age of 13. Her mother said
that Erin had named ask.fm in her suicide note and that she could
not cope with the bullying.[21]
Anthony Stubbs committed suicide in 2013; his girlfriend received
abuse on ask.fm.[22]
There are further similar incidents relating to the same and other
websites. As a result of these incidents and the adverse publicity
which they attracted, ask.fm has introduced a number of privacy
options.
54. Section 5 of the Defamation Act 2013 incentivises
website operators to know the identities of their users (see paragraph 89).
It is a fraught question whether to require the operators of websites
(which enable their users to post opinion) to establish the identity
of people opening accounts to use their services, whether or not
the website subsequently allows those people to use their service
anonymously. Would this be an undesirably chilling step towards
tyranny, or merely a necessary administrative step to ensure that
law enforcement agencies can properly investigate crime? From
our perspective in the United Kingdom, if the behaviour which
is currently criminal is to remain criminal and also capable of
prosecution, we consider that it would be proportionate to require
the operators of websites first to establish the identity of people
opening accounts but that it is also proportionate to allow people
thereafter to use websites using pseudonyms or anonymously. There
is little point in criminalising certain behaviour and at the
same time legitimately making that same behaviour impossible to
detect. We recognise that this is a difficult question, especially
as it relates to jurisdiction and enforcement.
PROVISION OF EVIDENCE
55. There are means by which both public authorities
and private individuals may try to obtain information about the
identity of a person who has made a statement anonymously, with
a view to court proceedings.
56. A private individual may ask the court to
make a "Norwich Pharmacal order", a well-established
procedure which requires the respondent to disclose information
to the claimant. The respondent must be either involved or mixed
up in a wrongdoing, whether innocently or not, and is unlikely
to be a party to the potential proceedings.
57. A relevant public authority for the purposes
of the Regulation of Investigatory Powers Act 2000, including
the police, may use Chapter II of that Act to obtain communications
data for the purpose of detecting crime. The Joint Committee on
the draft Communications Data Bill observed: [23]
Communications data held overseas
33. RIPA is drafted so as to attempt to give
United Kingdom public authorities a legal basis for requesting
communications data from CSPs [communications service providers]
based overseas if they operate a service in the United Kingdom.
However, many overseas CSPs refuse to acknowledge the extra-territorial
application of RIPA. The procedure can of course be used to request
access to data, and many CSPs will comply but emphasise that they
are doing so on a voluntary basis; others will refuse to respond
to RIPA requests at all. At that stage the only way in which United
Kingdom law enforcement authorities can access the data is through
the arrangements for international mutual legal assistance which
allow the judicial and prosecuting authorities of one state to
seek from the authorities of another state help in the prevention,
detection and prosecution of crime.
58. We see the same issue. John Cooper QC said
that the law was not yet certain as to where the cause of action
arose. This created a problem with proving the offence.[24]
Twitter said that they would cooperate and work with the police
in any territory where an offence had been alleged to have been
committed.[25] We notice
however that the authorities in France have only very recently,
and at the end of a lengthy court process, persuaded Twitter to
cooperate with them in relation to the investigation of the posting
of anti-Semitic tweets.[26]
Twitter's position remains that they are cooperating voluntarily.
We encourage website operators to expedite requests for identity
data made by our recognised law enforcement agencies using powers
granted by Parliament.
2 Q 25 Back
3
Q 1 Back
4
Q 5 Back
5
Q 37 Back
6
Q 16: "Alison Saunders: … Assault is a sort of
classic where you might have overlap, whether it is a common assault
or a section 47-actual bodily harm. That is what the guidance
that we have issued is around…
Lord Razzall: But you do agree that
currently there is a bit of an overlap?
Alison Saunders: There is, as with
a number of different parts of the legislation that we operate
under." Back
7
Q 2 Back
8
Q 3 Back
9
Q 21 Back
10
Q 10 Back
11
Q 8 Back
12
HL Deb, 21 July 2014, col 978 Back
13
Available at: http://ico.org.uk/for_organisations/data_protection/topic_guides/cctv Back
14
ECJ Case C-101/01 Back
15
ECJ case C-131/12; Google Spain SL and Google Inc. v Agencia
Española de Protección de Datos (AEPD) and Mario
Costeja González. Back
16
Q 20 Back
17
Ibid Back
18
QQ 30, 35 Back
19
Available at: http://www.theguardian.com/technology/2014/jul/16/youtube-trolls-google-real-name-commenter-policy
Back
20
Q 35 Back
21
Available at: http://www.independent.ie/irish-news/tragic-erin-named-askfm-in-suicide-note-claims-mother-29497140.html
Back
22
Available at: http://www.lep.co.uk/news/local/family-call-for-ask-fm-to-be-shut-down-1-5629088
Back
23
Joint Committee on the draft Communications Data Bill, Draft
Communications Data Bill (Report of Session 2012-13, HL Paper
79, HC479) paragraph 33. Back
24
Q 7 Back
25
Q 28 Back
26
Available at: http://www.theguardian.com/technology/2013/jul/12/twitter-data-french-antisemitic-tweets Back
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