CHAPTER 5: SUMMARY OF PRINCIPAL CONCLUSIONS
94. Our principal conclusions have been:
(a) the criminal law in this area, almost
entirely enacted before the invention of social media, is generally
appropriate for the prosecution of offences committed using the
social media;
(b) 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;
(c) the Director of Public Prosecutions' guidance
for prosecutions involving communications sent using social media
appropriately takes account of freedom of expression;
(d) what is not an offence off-line should
not be an offence online. There is no specific criminal offence
of bullying. 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;
(e) 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;
(f) due to the frequent need to obtain evidence
from abroad, it would be proportionate to extend the period for
the investigation of offences committed using social media to
be tried in a magistrates' court to be extended from 6 to 12 months;
(g) 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;
(h) 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;
(i) from our perspective in the United Kingdom,
if the behaviour which is currently criminal is to remain criminal
and 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;
(j) from our perspective, the only way to
resolve questions of jurisdiction and access to communications
data would be by international treaty. The question is relevant
to many more areas of the law and public protection than criminal
offences committed using social media and is politically contentious
in most countries. This raises issues beyond the scope of this
inquiry.
95. For those interested in our introductory
quotations, they are:
(a) a "hashtag" used for linking messages
on Twitter. It is in use;
(b) an example of a tweet sent to Mr Tom
Daley, a diver who failed to win a medal in the 2012 Olympic Games
and in 2013 announced that he was gay. Investigated but not prosecuted
on the basis that it was not grossly offensive;
(c) the sender of this tweet was prosecuted for
sending a message of a menacing character contrary to section
127 of the Communications Act 2003. He was initially prosecuted,
convicted by a magistrates' court and fined £385 and £600
costs but, after three appeals, his conviction was quashed by
the High Court (including the Lord Chief Justice) on the
basis that "a message which does not create fear or apprehension
in those to whom it is communicated, or who may reasonably be
expected to see it, falls outside this provision [of the 2003
Act]".[40]
Accordingly, the appeal against conviction was "allowed
on the basis that [the tweet] did not constitute or include a
message of a menacing character";
(d) examples of a series of tweets sent by a
person in response to others about a black footballer who had
collapsed on-pitch with a cardiac arrest. Investigated and prosecuted
as a racially aggravated offence under section 4A of the Public
Order Act 1986; offence admitted; sentence of imprisonment for
8 weeks;
(e) an example of a French anti-Semitic tweet,
one of many text and image tweets currently being investigated
by the French prosecution authorities (cf paragraph 58);
(f) examples of a series of tweets sent by two
individuals (amongst others) to a person campaigning for a woman's
face to appear on a banknote. Investigated and prosecuted as an
offence under section 127 of the Communications Act 2003; offence
admitted; sentences of imprisonment for 12 and 8 weeks; and
(g) just to show that nothing is ever really
new, a man was convicted by magistrates in 1913 under section
4(1)(c) of the Post Office (Protection) Act 1884 for sending "grossly
offensive" postcards to officials in Leeds in which he described
an Alderman as an "insurance swindler".
40 See: http://en.wikipedia.org/wiki/Twitter_Joke_Trial - cite_note-High_Court_Judgment-27 Back
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