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. 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



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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





