A new frontier in the boundary between professional and private life – solicitors’ undertakings
According to a recent survey 89% of the UK population is an active internet user. 38 million people actively use social media, 31 million actively use Facebook, and 15 million actively use Twitter. Regrettably, not all social media users are using platforms for legitimate purposes and the Crown Prosecution Service (the “CPS”) has been forced to react to this reality.
On Monday 10 October 2016 the CPS issued “Guidelines on prosecuting cases involving communications sent via social media” (the “Guidelines”) with immediate effect. “Social Media” for these purposes “refers to the use of electronic devices to create, share or exchange information, ideas, pictures and videos with others via virtual communities and networks”.
The Guidelines are intended to assist the police and prosecutors in identifying criminal conduct committed online and they deal with a range of behaviours that constitute virtual harassment and online bullying. In particular, the Guidelines address offences that specifically target women.
Offending is broken down into four categories and there are additional sections on various other classes of offending:
These are communications which may constitute threats of violence to the person or damage to property.
These are communications which specifically target an individual and which may constitute a number of offences including the relatively new offences of “controlling or coercive behaviour” and “disclosing private sexual images without consent”.
Category 2 may encompass cases of “sexting” – the exchange of sexual messages or images and the creation, sharing, and forwarding of sexually suggestive nude or nearly nude images through mobile phones and the internet – that involve images taken of person under 18.
The Guidelines state that it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship. However, prosecutions may be deemed appropriate in other scenarios, for example those involving exploitation, grooming or bullying. Further, if Section 15A of the Sexual Offences Act 2003 is brought into force, the section may well be used to prosecute cases of “sexting” between an adult and a person under 16.
These are communications which may amount to a breach of a court order or a statutory prohibition.
Category 4 is where the most significant new guidance has been provided. This category deals with communications which do not fall into any of the categories above i.e. those which may be considered “grossly offensive, indecent, obscene or false”.
Charges will normally be brought under Section 1 of the Malicious Communications Act 1988 or Section 127 of the Communications Act 2003. Importantly, there is no requirement under either statute that the message or communication is received or seen by the intended recipient; the offence is committed by the mere sending of the communication.
However, whereas the Guidelines state that prosecutions relating to Categories 1, 2, and 3 will likely fall within the public interest, it is noted that Category 4 cases “will be subject to a high evidential threshold and in many cases a prosecution is unlikely to be in the public interest”. In short, prosecutions will only likely be appropriate where the relevant communication is more than:
“Doxxing” and “Virtual Mobbing”
Category 4 offences may also be committed by individuals who encourage others to commit an offence under the Serious Crime Act 2007. This may occur as a result of a variety of online activity including but not limited to (i) “doxxing” which involves putting someone's personal details such as home addresses or bank details online, or the creation of a derogatory hashtag to encourage harassment of an individual, and (ii) “virtual mobbing” or “dog-piling” whereby a number of individuals use social media to disparage another person due to opposition to that person’s views.
False or Offensive Social Media Profiles
Under the Guidelines further offences may occur under any of the categories above where individuals set up a false social networking account or website, or create a false or offensive social media profile.
Social Media Violence Against Women and Girls (“VAWG”) Offences
In furtherance of the CPS’ strategy to battle offending that constitutes VAWG, the Guidelines also set out further guidance on how VAWG crimes may be committed online.
Particular attention is paid to “cyber-stalking”. There is no legal definition of “cyber stalking” but, as well as behaviour commonly associated with “traditional” forms of staking and harassment, the Guidelines provide numerous examples of activity that is specifically committed online. The list includes but is not limed to:
Social Media Hate Crime Offences
Hate crime offences are those that are aggravated by reason of the victim's race, religion, disability, sexual orientation or transgender identity.
The Guidelines clarify that where prosecution of an offence might otherwise fail to meet the threshold of “grossly offensive”, discrimatory or hostile language based on the aggravating factors above may elevate the offence to one that meets the test. It is also more likely that restrictions on freedom of speech will be deemed necessary and proportionate (see below) in these circumstances.
On Monday, the CPS also launched its Public Policy Statements on Hate Crime which will be put to a public consultation and remain open until 9 January 2017.
Article 10 of the European Court of Human Rights (“ECHR”)
Article 10 of the ECHR provides that: “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
However, the ECHR has determined that the rights of freedom of expression and to receive and to impart information are not absolute. Indeed, there can be exceptions to these rights where restrictions are both necessary and proportionate (Sunday Times v UK (No 2); Goodwin v UK  22 EHRR 123).
The Guidelines seek to address the issue of freedom of speech by advising against prosecutions relating to social media communications in the following circumstances (although the list is not exhaustive):
Given the scale of social media activity in the UK, which continues to rise, we anticipate that the Guidelines will lead to a significant increase in the prosecution of online offending but we will also be able to apply them in defence of such allegations, in particular where it is arguable that the threshold of “grossly offensive” is not met in Category 4 cases.
“Virtual mobbing” in particular is likely to give rise to increased consideration of social media activity aimed at criticising those in the public eye. These instances will require careful consideration of the applicability of freedom of speech under the ECHR (see above).
As set out in the Guidelines, possible offences are not limited to harassment and “cyber-stalking” but rather may also extend to fraud, for example where false social media accounts are created, and violent offences where threats are made online.
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