Criminal law and social media

Twitter abuse, or ‘trolling’, has rarely been out of the news in recent months. In June 2014, it was reported that social media crimes now make up at least half of the calls that police receive every day.

Trolls are often charged under section 127 of the Communications Act 2003. This creates an offence of sending a message that is ‘grossly offensive or of an indecent, obscene or menacing character’ via an electronic communications network.

Twitter joke

Previously used to deal with nuisance phone calls, s127 has undergone something of a renaissance in recent years. In a string of cases, beginning with the now infamous Paul Chambers ‘twitter joke trial’, s127 has been used to prosecute people for what they have posted on their social media accounts.

For example, in September 2012, Azhar Ahmed was prosecuted for posting a message on his Facebook page that was critical of soldiers fighting in Afghanistan. The update was published shortly after the death of six British soldiers.

Ahmed, while comparing the plight of soldiers to the suffering of the families who had been directly affected by the war, expressed the sentiment that all soldiers should “die and go to hell”. Despite the crude and unpleasant way Ahmed expressed himself, the views he was putting forward were essentially political in nature; ineloquent, yes, but political nonetheless.

The fact that s127 is being used to prosecute speech of a political nature, however crudely expressed, is extremely troubling.

The next month, in October 2012, teenager Matthew Woods was prosecuted for posting on Facebook sick jokes about missing girl April Jones. Woods pleaded guilty and was sentenced to
12 weeks’ imprisonment. Again, the jokes posted
by Woods, apparently in a “moment of drunken stupidity”, were certainly unpleasant, but are they really something that should properly fall within the remit of the criminal law?

The DPP at the time, Keir Starmer, seemed not to think so. These cases led him to issue guidance in 2013 stating that prosecutors should apply a ‘high threshold’ to ensure that s127 is not used as a means of prosecuting social media communications that are merely offensive, satirical, or unpopular.

However, as recently as February this year,
John Barrack was prosecuted for surreptitiously taking a picture of a policeman who was interviewing him and using the ‘Snapchat’ app to draw a phallus on the policeman’s head. He then posted the edited picture to his Facebook profile.

He was convicted and the magistrates imposed a 12-month community order with 40 hours’ unpaid work and ordered Barrack to pay the officer £400 compensation as well as £85 costs and a £60 victim surcharge.

Summary offence

The case highlights another problem with s127 prosecutions: Barrack was not represented and, as Matthew Woods had done, he pleaded guilty to the offence.

One has to question whether a photograph
of a policeman with a hand-drawn, brightly coloured penis on it, which was later published anyway by newspapers reporting on the story, could truly be said to be grossly offensive, indecent or obscene.

In reality, the issue was not properly aired because of the guilty plea. Section 127 is a summary only offence and is therefore dealt with exclusively by the magistrates’ courts. Defendants will often be unrepresented and may not have had the benefit of any formal legal advice.

It is clear from this that prosecutorial guidance alone is not sufficient; the law must be changed. Aside from the fact that judging what is ‘grossly offensive’ is a highly subjective exercise, it should not be the role of the criminal law to protect against offence and promote civility online.

This year, s57 of the Crime and Courts Act 2013 came into force, meaning it is no longer an offence to use ‘insulting’ words or behaviour following a campaign that argued the offence was “having a chilling effect on free speech across our country”. The same might be said for s 127.

Of course, there are circumstances where prosecutions may be appropriate in respect of social media publications, for example, when someone embarks on a prolonged period of harassment, but there are perfectly adequate laws to deal with those situations. Section 127 does not add anything useful, but represents a serious threat to freedom of expression. SJ

Sara Mansoori and Eloise Le Santo are barristers at Matrix Chambers

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