Social media and criminal offences - Communications Committee Contents


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: - cite_note-High_Court_Judgment-27 Back

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