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.

The law

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...