There are many reasons why you might want content removed from someone else’s website or social media feed. Many complaints involve defamation or intellectual property rights infringement, and can be settled between the parties through litigation or dispute resolution. But sometimes the misdeeds perpetuated online can amount to a criminal offense, which may become a police matter. Following my recent article in the Oxford Journal of Intellectual Property Law & Practice exploring how to get unwanted deepfakes taken offline, this post provides an overview of criminal offenses people commit on social media.
Has There Been a Civil Wrong, or a Criminal Offense?
In very broad terms, civil wrongs — also known as torts — permit the harmed person to seek a private civil remedy, such as an injunction or compensation known as “damages”. Criminal offenses, on the other hand, warrant community condemnation and prosecution by the authorities. In England and Wales, this is the Crown Prosecution Service, overseen by the Director of Public Prosecutions. The first thing to consider therefore is whether or not the content is actionable from a legal perspective, and if so, whether it is a civil wrong or a criminal offense. Because it’s a big subject, this post — which is Part 2 — covers only criminal offenses, but Part 1 discussed civil wrongs and torts.
Harassment is a connected series of two or more events carried out by the same person(s) which causes the victim distress or alarm. As discussed in Part 1, in addition to being a civil wrong, harassment can also be considered a criminal offense in some situations. For example, harassment will be a criminal offense if the defendant harasses two or more victims, with the intention of persuading a person to do, or not do, something. An example of this would be an ex-girlfriend trying to convince her ex-boyfriend’s employer to fire him. This is a summary offence (similar to a “misdemeanour” in the U.S.A.) and carries a sentence of imprisonment up to six months, or an unlimited fine.
It is also a criminal offense under s. 4 of the Prevention from Harassment Act 1998 for the harasser to put the victim in fear of violence. This is an indictable offence which gives rise to the right of trial by jury, and carries a sentence of imprisonment for up to 10 years. This was originally five years back in my law school days, but the Policing and Crime Act 2017 bumped this up to 10.
Photo by Jon Tyson via Unsplash
Malicious Communications Act 1988
The Malicious Communications Act 1988 (“MCA“) makes it illegal to send or deliver a letter, electronic communication or article of any description which conveys a message to another person for the purpose of causing distress or anxiety. Although it was originally enacted to punish hate-mail and threatening letters, it now captures social media messages and email, too. Today, the MCA is used to charge people who make social media comments which are racist, Anti-Semetic or Islamophobic (to name only a few categories).
The communication does not need to be read by or even reach the intended recipient. It is the act of sending the communication to the person, with the intention to cause distress that constitutes the crime, which is punishable by up to six months in prison or a fine. Depending on the facts of the case though, a social media communication which is merely a blog or a comment posted on a website might not suffice as sending to the person. On Twitter, @-ing to someone’s specific handle is likely to be considered a message to a person, but simply tweeting it to all of your followers with no @ or hashtag might not be.
It’s also important to note that the message must be “grossly offensive”, obscene, menacing or false, and the evidential burden for the Crown Prosecution Service (“CPS“) to meet is very high. As explained by CPS guidance, prosecutors should only proceed if they are satisfied that the comment is more than simply offensive, rude, or shocking: it needs to cross a high threshold in order to protect freedom of expression. Because misuse of the MCA has the potential to inappropriately censor free speech, many prosecutions are not pursued, even if the evidence exists, because doing so is not in the public interest. Nevertheless, in 2017, there were 3058 prosecutions under the MCA.
Communications Act 2003, s. 127
Under s. 127 of the Communications Act (“CA“), it is a criminal act to send a false, grossly offensive, indecent, obscene, or menacing message over a “public” communications network. A s.127 offense under the CA is very similar to a s.1 MCA 1988 offense, but does differ slightly. For example, the message must go over a “public” network: the Internet and mobie phone networks are public, whereas an intranet or LAN is not. This wording has been copied nearly verbatim from 1930s legislation relating to the misuse of public service facilities, namely British Telecom. In the context of social media however, this distinction doesn’t really mater.
Setting up a fake social media account for the purpose of commiting fraud or stealing confidential information may be a CMA 1990 offense. Photo by Pixabay via Pexels
Computer Misuse Act 1990
The Computer Misuse Act 1990 (“CMA“) covers three crimes: unauthorised access to computer material; unauthorised access plus intent to commit or facilitate commission of further crimes; and unauthorised modification of computer material. Given that cyber terrorism is a concern for Government, the Serious Crime Act 2015 amended the CMA to make the unauthorised use of a computer to endanger human welfare or national security punishable by life imprisonment. Clearly, these provisions are intended to deter the more serious cyber criminals and hackers. However, in the social media context, if someone impersonates another by creating a fake account for the purpose of committing fraud or some other illegal activity, the CMA offense might apply.
“Uplifting” Communications offenses to hate crimes
Sections 127 CA 2003 and 1 MCA 1988 are “communications offenses”. Under ss. 145 and 146 of the Criminal Justice Act 2003, Prosecutors can slap on an increased punishment for communications offenses which are also considered hate crimes. This applies where the defendant “demonstrates hostility to the victim based on the victim’s protected characteristic”, such as their race, religion, disability, sexual orientation or gender identity. I’ve written previously about this in my post, Is Posting Rap Lyrics on Instagram a Hate Crime?
How do Prosecutors decide whether to bring a criminal charge?
Before bringing a charge against someone for a criminal social media offense, the CPS must be satisfied that doing so is in the public interest. In light of the freedom of expression, special care must be taken when contemplating a charge for the way in which a person expresses themselves. Prosecutors will take the following into consideration:
Re-offending: did the suspect make a one-off comment or is it a sustained campaign against the victim?
Maturity: is it a young person who perhaps does not fully appreciate or understand what they have written?
Circumstances: what was the particular harm caused to the victim, and was it part of a co-ordinated attack such as virtual mobbing or a pile-on?
Retaliation: was the victim targeted because they reported a separate criminal offense?
Audience: was the message intended for a wide audience, and was the victim intended to be part of that audience?
Correction: did the suspect take swift and effective action to remove the content?
Remorse: has the suspect expressed genuine remorse for what they wrote?
Of course, the criminal offenses outlined above are not an exhaustive list of the ways in which one can get in trouble on social media. An obvious omission here is child pornography, but that’s a pretty straightforward matter which doesn’t require much of an explanation! Nevertheless, I hope that this overview was interesting from a media law perspective. It’s definitely worth noting that these laws are the subject of a lot of political and academic debate, and reforms are currently in progress. In the meanwhile, if you’re interested in some of the case law on this subject, here are a few key judgments:
DPP v Collins  UKHL 40 — Collins repeatedly telephoned his MP’s constituency office to make racist and offensive comments.
Chambers v DPP  EWHC 2157 (QB), also known as the “Twitter Joke Trial” — after his flight was cancelled, Chambers tweeted that he would blow the airport sky high.
DPP v Smith  EWHC 359 (Admin) — a teenager added messages including “I’m going to put an IED on your doorstep” and “I will kill the kuffir, Allahu Akbar” to news clips he uploaded to YouTube.
⚠️ IF YOU’VE BEEN AFFECTED BY ANY OF THE ISSUES COVERED IN THIS POST, PLEASE CONSIDER DISCUSSING THE MATTER WITH THE POLICE OR SOMEONE YOU TRUST. I DO NOT SPECIALISE IN CRIMINAL LAW: THIS POST PROVIDES A GENERAL OVERVIEW OF SOME OFFENSES, BUT NOT ALL, AND IS INTENDED FOR GENERAL INFORMATION ONLY.
Featured photo by Kai Pilger via Unsplash