Anti-social media

When Charles Babbage designed  the world’s first electronic computer between 1833 and 1871, he probably didn’t turn his mind to the use that might be made of such a device. Advance 145 years and we all see that rather than being essentially devices for carrying out mathematical calculations they are now the biggest platform for social media interaction. That easy interaction and the appearance of anonymity have meant that the computer and mobile phone have quickly become tools used by some to ridicule, defame, blackmail, extort, humiliate and expose.

In the wrong hands such tools are not benign enablers but dangerous devices which can cause extreme harm and real mental suffering. Only recently, after the tragic death of Labour MP Jo Cox, it was widely reported that her family was subject to extreme abuse on twitter with calls for her not to be the last to die for holding liberal views on inclusiveness and immigration. The Guardian reported that more than 50,000 abusive and offensive tweets were sent celebrating her murder and lauding the killer, Thomas Mair, as a “hero” or “patriot” in the month following her death, prompting calls for the government to do more to tackle hate speech online. It has also been widely reported that some female MPs receive also daily threats of death and rape.

Similarly, the alleged victims of sexual offences, subject to anonymity, have been repeatedly named on social media.

These are not crimes without a consequence. People who are made the subject of revenge porn disclosures may suffer real emotional harm and women who might have a significant contribution to make to politics no doubt think twice about this when they become aware of the treatment they may receive on social media platforms.

There are other social consequences. As the NSPCC reported the number of incidence of self -harm in children aged between 11 and 18 has increased by 14%, this year and has been rising steadily for 5 years. The NSPCC said that this was in part caused by unhappiness teenagers felt due to the constant pressure particularly from social media, to have the perfect life or attain a certain image which is often unrealistic.

The law has sought to keep pace with the use of social media platforms as tools with which great harm can be done. There are offences such as under the Protection from Harassment Act 1997, Section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour), Section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual images without consent) and the Malicious Communications Act 1988 (sending a communication which is indecent or grossly offensive) to name but some of the offences.  The CPS has gone to the length of issuing prosecutors with specific guidance directed at when they should institute criminal charges for communications sent via social media. For more information see Practice note, Social Media Offences.

That guidance betrays some of the problems faced with tackling such criminality. At the heart of the guidance is the recognition that the law should not be used as an instrument to unreasonably shackle free speech. Very few would disagree with that. The problem is that harm done intentionally and gratuitously needs to be outlawed whilst at the same time robust and at times distasteful observations must be allowed to be vented. The gap between these two positions may sometimes shrink to almost invisible and that is the challenge for the law. A Scottish Court recently determined that a social media offence must be objectively threatening.

Powers soon to be available to the police under the Investigatory Powers Act 2016 , will mean that they will be able to identify perpetrators relatively easily following the making of a request to the relevant service provider. Some have even called for the companies that host such social media applications to be made legally responsible for the harm caused by those who use the application. However, legislators have declined to do so, probably on the basis that this is akin to shooting the messenger rather than tackling the problem at its root.

The police face an unenviable task in combating social media offences. They are now so prevalent that finite resources could easily be consumed policing the internet whilst other, equally serious crimes, go under-investigated.

Social media is certainly here to stay. The question that legislators must address is how much resource should be devoted to keeping the internet as a safe domain especially when many sites are hosted abroad and available to all yet apparently outside the jurisdiction of our criminal justice system. Equally, the extent to which a person has a right to be offensive will be debated with equal fortitude. One imagines that this is a debate that will go on and on.

Practical Law Paul Brooks

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