Social media and the criminal law
First appeared in Entertainment Law Review, 1 March 2013
This has been the year in which the criminal law has tried to get to grips with social media. There have been a number of high profile prosecutions of individuals who have posted abhorrent messages on social media websites.
In the past, internet trolls have operated on the basis that the internet allows them to operate outside the normal bounds of respect and civility. It is easy to see why – in this virtual environment, where there is no proximity to the victim and often anonymity for the poster, there is detachment from real life. The poster is therefore emboldened to do things which he would not otherwise do.
But the internet is real life. The effect of malicious, racist and abusive messages can be devastating for the victim. There is growing public concern and intolerance of such conduct. Recent prosecutions also show that the Crown Prosecution Service ("CPS") is alive to this issue and is willing to take action against offenders.
This article will look at the law used by the CPS to prosecute offenders, together with some of the practical difficulties associated with its application, before going on to summarise some forthcoming developments in this area.
There are a number of laws available to prosecute individuals who post despicable messages on social media platforms. The most commonly used is section 127(1) of the Communications Act 2003 (“CA 2003”).
It is deceptively simple. Section 127(1) catches a person who posts a message which is:
- grossly offensive; or
- of a character which is indecent, obscene or menacing.
A person found guilty can be sentenced to up to 6 months imprisonment and/or be fined up to £5,000.
Recent examples highlight that the use of section 127(1) is leading to convictions, and that tough sentences are handed out as a result. In May 2012, Liam Stacey lost his appeal against a sentence to 56 days imprisonment for posting racially aggravated abuse on Twitter. The messages related to Fabrice Muamba, who suffered a cardiac arrest during a televised FA Cup match between Bolton Wanderers and Tottenham Hotspur. In similar fashion, in October 2012 Matthew Woods was jailed for 12 weeks (cut to 8 weeks on appeal) for posting offensive jokes on Facebook about missing Welsh schoolgirl April Jones.
There is also the Malicious Communications Act 1998 (“MCA 1998”). Section 1 MCA 1998 catches a person who posts a message which conveys inter alia:
- a message which is indecent;
- a message which is grossly offensive; or
- a threat
The sender must also intend to cause distress or anxiety for the recipient.
A person found guilty can be sentenced to up to 6 months imprisonment and/or be fined up to £5,000.
Recent examples highlight that section 1 MCA 1998 is also being used in connection with the posting of offensive messages on the internet. In November 2012 a teenager was arrested and questioned by Kent police under suspicion of having breached the MCA 1998 for posting a picture of a burning poppy on facebook. Perhaps more surprising in July 2011 The Guardian reported that a 52-year old man had accepted a caution under the MCA 1998 for alleging that a contestant on Britain’s Got Talent had been groomed for success on the show by Simon Cowell.
The practical difficulty
The application of these laws to social media platforms has not been without difficulty.
First, there is the issue of deciding where the line should be drawn and when an offensive message should be considered as criminal. There are some who say that vile comments should not be criminal and that Mr Woods ought not to have been jailed for posting sick jokes about April Woods, no matter how unpleasant. It is introducing new obscenity laws through the back door. On the other side are those who are fed up with internet trolls and who do not believe that social media platforms should be a free for all where anything goes. In other words, where an individual steps over the line and posts something which is not just offensive, but is grossly offensive, the law should step in.
The recent cases involving Mr Stacey and Mr Woods illustrate the sort of thing that the CPS and the judiciary are not prepared to tolerate. However, on the other side of the line is the case of Daniel Thomas, a semi-professional footballer who posted a homophobic message on Twitter about Olympic divers Tom Daley and Peter Waterfield. Mr Thomas was arrested and interviewed by the police, but the CPS ultimately decided not to prosecute. In making this decision the Director of Public Prosecutions ("DPP") gave the following explanation about the sort of messages which will fall foul of the law:
"There is no doubt that the message posed by Mr Thomas was offensive and would be regarded as such by reasonable members of society. But the question for the CPS is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made. Context and circumstances are highly relevant and as the European Court of Human Rights observed in the case of Handyside v UK (1976), the right to freedom of expression includes the right to say things or express opinions "…that offend, shock or disturb the state or any sector of the population"."
In the case of Mr Thomas, the CPS explained that the context and circumstances of the tweet meant that a prosecution was not appropriate. The DPP explained that:
"This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield, it was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse. Against that background, the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that on a full analysis of the context and circumstances in which this single message was sent, it was not so grossly offensive that criminal charges need to be brought.
Before reaching a final decision in this case, Mr Daley and Mr Waterfield were consulted by the CPS and both indicated that they did not think this case needed a prosecution."
The distinction is not always easy to make between what is criminal and what is not. A high profile example of this is what became known as the "Twitter joke trial". The case involved Paul Chambers, who at the time in question was 26 years old and described by the Court as a “well educated young man of previous good character”. Mr Chambers was a regular user of the Twitter website. On 15 January 2010, Mr Chambers planned to fly to Belfast to visit his girlfriend. However, on 6 January 2010 he learnt that Robin Hood Airport had closed due to adverse weather conditions and so he tweeted the following message:
"Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"
The tweet was visible to Mr Chambers' 600 odd followers but nothing happened immediately. The Court remarked that there was no evidence to suggest that any of Mr Chambers’ followers, or indeed anyone else who may have seen the tweet, found it to be of a menacing character or even minimally alarming. However, some 5 days later an off-duty security manager for Robin Hood Airport discovered the tweet when searching generally for tweets about the Airport. The security manager escalated the matter internally and it eventually reached the airport police. They took no action but forwarded it to the South Yorkshire Police, who proceeded to arrest Mr Chambers on suspicion of involvement in a bomb hoax. Upon being interviewed by the police, Mr Chambers maintained that his tweet was only meant to be a joke. Indeed, the police seemed to agree with this analysis given that their crime management system recorded the following summary:
“Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone / computer seized – there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.”
The police referred the matter to the CPS who incredibly decided to charge Mr Chambers for sending a "menacing" message contrary to section 127(1) CA 2003.
Mr Chambers was convicted in the Magistrates Court and failed to overturn that decision in the Crown Court. However, on appeal to the High Court the conviction was eventually overturned. In doing so, the High Court held that for something to be characterised as "menacing" it needs to create fear or anguish of something unpleasant likely to happen to those to whom it is communicated or who may reasonably be expected to see it. If the persons who are likely to receive the message would brush it aside as a joke, then the message cannot be considered to be of a menacing character. As the Court noted:
“[If] the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, 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, for the very simple reason that the message lacks menace.”
That was plainly the case in this instance. The airport security team, airport police and South Yorkshire Police all believed the tweet to be nothing other than a foolish joke.
The Court also highlighted the importance of considering a message’s precise terms, including any inferences, and the context in and the means by which the message was sent. In this case, the message was posted on Twitter, to Mr Chambers’ followers, drawing attention to himself and to his predicament. Importantly, the message was not sent to anyone at the airport. The true meaning of the message was not a threat but a grievance: the airport was closed and Mr Chambers wanted it to be open. Accordingly, on this basis and the true joke nature of the tweet there was simply no reason to say that the tweet was menacing and so the appeal succeeded.
One interesting legal issue to emerge from the case is the question of mens rea. The reader will note from the statutory definitions of the CA and MCA offences above that it is only the latter which prescribes the element of intent: an intent to cause distress or anxiety for the recipient. In relation to the CA, the Court held that the required mens rea is intent that the message should be of a menacing character, or an awareness of the risk that it may create fear or apprehension in any reasonable member of the public who reads it. Accordingly, if one intends the message to be a joke, even one in poor taste, then it was unlikely that the mens rea required for conviction would be satisfied.
Mr Chambers' case drew a great deal of press attention, not least because Mr Chambers was supported by Stephen Fry and Al Murray. It provides a stark illustration of the difficulties faced by the CPS in deciding which side of the line a particular case falls.
The growth of the number of websites which host user generated content means that there is a vast amount of material out there which, on an initial reading, is grossly offensive and/or menacing and so contrary to the criminal law. However, it cannot possibly be right that they should all be investigated. There is not the time or the resources. The CPS cannot police the internet.
How should the CPS decide which messages warrant further investigation and prosecution, and which should just be left alone? As the DPP said recently:
“[T]he CPS has the task of balancing the fundamental right of free speech and the need to prosecute serious wrongdoing on a case by case basis. That often involves very difficult judgment calls and, in the largely unchartered territory of social media, the CPS is proceeding on a case by case basis. In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained. But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest."
In light of these difficulties, the CPS has announced that it is to set up a consultation process aimed at gathering together the opinions of campaigners, media lawyers, academics, social media experts and law enforcement bodies. The object of this process is to arrive at a set of guidelines which will assist the CPS to make clear and consistent decision on which cases warrant a prosecution.
It is obviously a good idea for the CPS to consult on this issue. There are very many practical difficulties involved in applying the criminal law to social media platforms. A sensible and pragmatic solution needs to be found and the chances of that happening are increased by having a proper consultation. It is hoped that this will be achieved and that the guidelines will help the CPS to decide when it is worth pursuing a complaint. At the time of writing, the draft guidelines were not yet published.
Rhys Griffiths is a Partner and a member of the Defamation Group at Field Fisher Waterhouse LLP. Rhys has particular expertise in online issues having acted successfully for Amazon in McGrath v Amazon and ADVFN in Smith v ADVFN.