IBC Legal Conferences’ 8th Annual Social Media Law Conference
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
A speech examiniming revenge pornography, internet trolling, freedom of speech and contempt of court in the digital age.
Many may wonder how a group that regularly wear wigs and gowns to work keep up with the inexorable expansion of the internet and social media into our everyday lives.
Social media provides a remarkable platform for individuals to publish to huge audiences at the touch of a button, and, it allows publication without editorial oversight or censorship. However, with that capability comes responsibility and the potential to break the law in ways many individuals may not anticipate.
I want to talk about some of the challenges that social media has presented to the Criminal Justice System and how we have responded to those challenges in a number of different ways.
I am very grateful for the opportunity to speak at today’s event after the former Solicitor General, Sir Oliver Heald QC MP, spoke here last year. In the time I have today, I am going to talk about four overlapping areas:
- revenge pornography;
- internet trolling;
- freedom of speech; and,
- contempt of court in the digital age.
There has been a groundswell of concern in the media and amongst the public about revenge pornography and I entirely understand why. It is difficult to imagine how invasive and distressing it has been for those who have had intimate pictures of themselves posted online by their former partners.
It is an incredibly cruel breach of trust and one that inevitably has a considerable lasting impact on the emotional well-being of those subjected to it.
If consenting adults choose to share private images they should be confident that the law will protect their privacy and that those images cannot be used to cause upset and distress if the relationship breaks down.
Many of you will be well aware that a new offence dealing with revenge pornography is to be introduced in the Criminal Justice and Courts Bill which is going through parliament at the moment. Whilst I welcome the introduction of a new offence for this type of behaviour, it is important to recognise that the Criminal Justice System has not simply ignored it up until now.
There are offences which pre-date Twitter and Facebook and prohibit publishing indecent or obscene material online.
Section 127 of the Communications Act 2003, for example, makes it an offence to send a message over the internet that is grossly offensive or of an indecent, obscene or menacing character. The origins of the offence can be traced back to legislation passed in the 1930s largely to protect telephone operators who received very unpleasant messages in the course of their work.
However, whilst times have changed and technology has moved on, the power to prosecute those who send such communications has remained. Recently the CPS has published guidance about how existing legislation can be used to prosecute incidents of revenge pornography. The guidance emphasises the significant impact that these offence can have on victims and the importance of considering the context in which a message has been sent when deciding whether or not to prosecute.
Many of you may ask, why then is a new revenge pornography offence needed? It will be, in my view, very helpful to have a bespoke offence designed to cover specifically the type of harmful behaviour that we know is taking place. The new law will make it abundantly clear to those considering an act of revenge pornography that they are likely to face prosecution.
In addition to revenge pornography there are other forms of sexual offending that have become increasingly prevalent online.
As Attorney General I am referred cases in which the sentence imposed for a criminal offence appears to be far lower than it should be. If I agree and consider that the sentence is unduly lenient, I have the power to refer the case to the Court of Appeal to have the sentence reviewed.
In recent months my Office has been referred a considerable number of cases which involve adults grooming children who they meet on social media. Commonly an offender will inveigle his or her way into the victim’s life on-line and then cause or incite the child to engage in sexual activity over a webcam.
There is no question that this behaviour amounts to a criminal offence. However, it has, in the past, been a matter of debate as to whether the sentences imposed for this type of offending should be at the same level as sentences given to those who commit the same offence but do so in person. Put another way, should inciting sexual activity with a child attract the same sentence if it takes place online as when it takes place face-to-face.
Only a few years ago the Court of Appeal considered in one case that, although they were undoubtedly serious, offences involving “cyber-sex” were likely to be less serious than physical contact offences. In subsequent cases the Court commented that cases of this nature were becoming more common and it was argued that online offences were more difficult to prevent and that the long-term effect on a child confronting personal exposure to a stranger is likely to be severe.
The debate was resolved when, in April of this year, the Sentencing Council published a new Guideline on sexual offences. The Sentencing Council made it clear that online and face-to-face offending should be treated equally by Judges deciding what sentence to pass.
Few people can have failed to notice the preponderance of stories in the media about those who set out to abuse, provoke or intimidate others on the internet. Invariably the perpetrators are referred to as “trolls” although it is, perhaps, a little bit of an oversimplification to put all such behaviour under a single banner. Whilst many people may see this type of harmful behaviour as being something of a new phenomenon, you may be surprised when I tell you that it isn’t.
The Malicious Communications Act was brought in more than 25 years ago to tackle the problem of what were called ‘poison pen’ letters. As the legislation passed through the House of Commons it was described as a common occurrence for specific groups to be targeted with offensive, false or threatening material sent with the purpose of causing distress. Public figures, ethnic minorities and the families of miners who had not gone on strike during the 1984 industrial dispute were identified as being some of those most frequently targeted.
Various examples were given which are, you may think, reminiscent of the types of trolling we hear about today. For example:
a well-known newscaster was sent a picture of herself with the eyes gouged out;
the widows of a group of lifeboat men who had drowned in tragic circumstances were sent anonymous letters accusing them of being happy that their husbands had died because of the compensation they received;
- a man was forced to exhume his 87-year-old mother because of the number of poison-pen letters that he’d received suggesting that he had been responsible for her death.
So, whilst the internet may have provided a new method for offenders to target others for abuse and hostility, behaviour akin to trolling has fallen within the remit of the criminal justice system for some years. What has changed is that social media has made trolling far easier and it has become far more prevalent.
The Justice Secretary has recently called for increased sentences under the Malicious Communications Act and I agree with him that the available sentences for this type of offending should be increased to provide a clear message of deterrence to those who consider targeting others online. That, too, is part of the Criminal Justice and Courts Bill.
Freedom of speech
As I mentioned, the term ‘troll’ has been used to describe a wide range of activity on the internet and one of the great challenges to the criminal justice system in recent years has been distinguishing between the type of behaviour online that should, and that which should not, require a criminal prosecution.
As a starting point, it is important to recognise that there are a great many criminal offences that can be committed on social media in just the same way as they can be committed in person. If you intimidate a witness, threaten to damage another person’s property or contact someone in breach of a restraining order, the fact that you have done so online will not change the fact that a serious offence has been committed.
It is also clear that if you specifically target an individual, sending threats or repeatedly harassing and intimidating them, there is no basis for saying that just because this has taken place online it is a legitimate exercise of free speech. It is clearly right that trolls who set out to harass or menace others should face prosecution and we have seen a number of high profile examples of this in recent weeks.
However, much more difficult questions arise where police and prosecutors are faced with messages that people post on the internet which are not directed at any particular individual, but which others happen across and find highly offensive. When considering this situation you will often hear people make comparisons between things that can be said in person and things that can be posted between social media users online. Some may ask: If I could say something others may find very offensive to a group of like-minded friends in the pub without fear of prosecution, why can’t I post the same thing on social media?
There are of course differences in the context and circumstances of something posted on social media and something said in the pub.
A tweet, for example, can have a very wide unintended audience. Indeed a public tweet can be viewed by anyone with access to the internet and shared and retweeted many, many times over. In short, as I mentioned earlier, a tweet is a publication and so it has the potential to have a much greater impact than a private conversation in person.
This is an incredibly difficult area for those in the criminal justice system to navigate, particularly given the many millions of messages sent every day and the fundamental importance of respecting an individual’s right to freedom of expression.
It is fair to say that in the past the CPS has not always got these cases right.
However, one of the most important developments has been the introduction by the Director of Public Prosecutions of guidelines on prosecuting cases involving communications sent via social media.
The final guidelines have been in place for over a year now and have been widely well-received. They make it clear that those messages that are not targeting an individual and are being considered solely on the basis that they contravene the criminal law because they are grossly offensive, indecent, obscene or false, should be looked at very carefully.
Prosecutors are required to take account of the context in which messages are posted on social media, particularly the fact that they are often uninhibited, casual and ill thought out and that those who participate know this and expect a certain amount of repartee or ‘give and take’.
Prosecutors are also required to apply a high threshold when considering whether a case should be prosecuted and this must take account of the fact that a person’s right to freedom of expression constitutes one of the essential foundations of a democratic society and encompasses behaviour that offends, shocks or disturbs.
Ultimately the guidelines, which are published on the CPS website, provide a clear steer to prosecutors, police and the public about the circumstances in which material posted on social media is likely to result in a prosecution whilst emphasising the very important principles of free speech.
Contempt of Court
Freedom of expression, however, is not an absolute right. It is fundamental to the criminal trial process that reports are not published in the media that could prejudice a case by, for example, influencing members of public into thinking that a defendant is guilty of a criminal offence before a trial has taken place.
Members of the public are, of course, potential jurors and the risk of prejudicial reporting unfairly influencing the outcome of a case is very real.
As many of you will know, this can constitute contempt of court and as Attorney General I have a particular role to play.
Where it is alleged that a publication has created a substantial risk that the course of justice in a criminal case will be seriously prejudiced, I decide whether or not proceedings should be brought against those responsible.
In making that decision I act as guardian of the public interest and consider carefully the competing interests of, on the one hand: press freedom and freedom of expression more generally – and, on the other hand, the fair administration of Justice and the right to a fair trial.
Until relatively recently, it was invariably only newspapers and large news organisations that were able to publish to large audiences but now, of course, social media provides that facility to anyone with access to the internet. Whilst journalists may have a keen awareness of the law of contempt together with editorial supervision and the availability of legal advice, individual social media users have no such assistance.
That is not to say that there are not rare occasions when journalists go too far and proceedings are brought against newspapers, but the difficulty in regulating prejudicial material posted on social media presents a whole new challenge.
One of the main ways in which we have sought to prevent prejudicial reporting is by issuing media advisory notes. We have issued these when media reports have become overheated and risked straying into the territory of contempt, in order to highlight potential problems with press coverage of a case or incident.
We have, in the past, given specific warnings about publishing material that asserts or assumes the guilt of a person facing prosecution or that prejudges issues a jury will need to consider in reaching their verdict.
In order to raise awareness of the risk of being in contempt of court we have also taken to publishing media advisory notes online and posting them on the Attorney General’s Office twitter account.
We have also started to send tweets warning social media users of the risks of being in contempt of court and the type of message that could prejudice a trial. It has been something of a challenge to get the key messages down to 140 characters but the simple point is this:
If, after a person is arrested, you publish something prejudicial about them online, you could be found to have committed a contempt of court.
I don’t suggest for a moment that there is not a lot more work to do to warn social media users about the risks of being in contempt of court; there are no easy answers and we will continue to take steps to raise awareness.
Contempt of court is also an area of law which covers misconduct by those who sit on juries.
This type of behaviour is thankfully very rare: about 178,000 people do jury service each year and since 2010 there have only been 5 cases of juror contempt that have reached a conclusion. Four of those case involved jurors using the internet and two of those involved use of social media.
Last year Sir Oliver Heald QC spoke in detail about some of the issues surrounding juror misconduct and I do not intend to cover that ground again. Suffice to say that since last year’s speech the government has brought in new legislation to prevent juror’s researching cases on the internet and a power for the court to order the temporary removal of electronic communications devices from jurors.
Whilst those within the criminal justice system had been using the long established principles of common law contempt to deal with this type of behaviour, the Government recognised that new legislation was required to reflect modern developments, particularly in relation to technology, the internet and media behaviour.
What I want to emphasise today is that, whilst there have been many challenges along the way, those within the criminal justice system has not stood by as social media has moved on and left them behind. Existing laws have been used to prosecute new forms of criminal conduct; clear guidance has been given to ensure a consistent and transparent approach; and, the Government has acted to strengthen the legislation where it has been appropriate to do so.
I have talked about a number of examples of the challenges which social media has presented to the criminal justice system. Inevitably looking at an area of human activity from that perspective will focus on harmful and extreme human behavior and it is important not to lose sight of the fact that social media is an incredible force for good.
Whilst there will undoubtedly be many more issues to deal with, perhaps the key challenge for those in the criminal justice system is to make sure that the public understands that with the amazing opportunities provided by social media come responsibilities which we should all take very seriously.