Against a background of widely debated social media issues from libellous tweets to cyber bullying and following the publication of CPS guidelines on prosecuting cases involving communications sent via social media, the House of Lords Communications Committee (“Committee”), appointed on 12 June 2014, has concluded that there is no need for new legislation to cover offences committed using social media. They have reached this conclusion on the basis that, although many of the relevant laws pre-date the birth of social media, most offences committed on social media are acts taking place in a new forum as opposed to new acts per se and therefore existing laws are sufficient to ensure that criminal offences committed using this medium can be adequately prosecuted.
By way of example, the report cites the range of offences under the Protection from Harassment Act 1997, which the Committee deemed sufficient to prosecute cyber bullying. The Committee also considered the difference between statements which are criminal and those which are merely offensive. The Committee concluded that, in some circumstances, the right to freedom of expression outweighs the need to prevent offence; and in such circumstances, no remedy is appropriate. Consequently, although the Committee acknowledged that “trolling” was liable to cause offence, there was no need to create a specific and more severely punished offence for such behaviour. (“Trolling” being the practice of starting arguments or upsetting people by posting inflammatory, extraneous or off-topic messages in an online community (such as a newsgroup, forum, chat room or blog) with the deliberate intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion).
The report makes clear the potential for such offences to occur, with 1.2 billion people regularly using Facebook and 255 million regularly using Twitter, 500 million “tweets” tweeted every day not forgetting that there are also many other forums where interaction and therefore offences can occur. In addition one of the key challenges with such activities is the ability for the perpetrator to remain anonymous.
The Committee notes that whilst the report is a review of law, “law is rarely the most effective tool for changing behaviour.” The report goes on to look at attitudes, monitoring and self help as alternative tools.
Accordingly one of the recommendations in addition to encouraging website operators to expedite requests made by recognised law enforcement agencies for identity data, is to develop further their ability to both monitor the use of their services and to improve the effectiveness of measures already in place to facilitate self help by enabling social media users to protect themselves.
Comments in the report in relation to website operators and the importance of their role in tackling these online offences are consistent with the new operators of website provisions in the Defamation Act 2013, which as noted in the report “incentivises website operators not only to operate an expeditious and proportionate “take down on notice” service but also to be capable of identifying people who post statements using their website”. The new defamation act is still in its infancy and therefore it is difficult to predict at this stage how helpful the new provisions will be but the report states that it would be desirable for website operators to publish statistics on monitoring and self-help – we wait with interest to see if website operators will do so.
The Committee did, nevertheless, make some suggestions for changes to existing laws in order to enhance their applicability to social media. For example, the Committee recommended that:
- The Director of Public Prosecutions provide guidance as to the circumstances in which an indecent communication could and should be subject to prosecution under the Communications Act 2003 or the Malicious Communications Act 1988;
- The period for investigation of offences committed using social media to be tried in a magistrates’ court be extended from 6 to 12 months due to the frequent need to obtain evidence from abroad; and
- Statues passed before the invention of the internet which refer to publications in terms of print media to be updated accordingly (for example, the Children and Young Persons Act 1933, which restricts reporting by newspapers in relation to children involved in criminal proceedings, but does not cover electronic communications and social media).
A copy of the report can be found here.