Out-Law News 3 min. read
20 Feb 2015, 3:34 pm
Big Brother Watch (BBW) said (27-page / 705KB PDF) existing laws under the Communications Act, and guidelines for public prosecutors on how they should be applied to social media communications, are unsuitable. Without reform, individuals could face criminal penalties "unnecessarily", it warned.
"There needs to be serious reform in this area, to ensure that the laws are brought up to date," BBW said in a new report. "Alongside this, it is now vital that the police begin to adopt a standardised approach to recording and combatting social media crime. It is imperative that a clear evidence base is established so that the use of these powers can be properly scrutinised."
"If these policy recommendations are not achieved, then it is almost inevitable that there will be further individuals who are arrested, charged and prosecuted unnecessarily under these laws," it said.
The BBW report highlighted a rise in the number of cases handled by police forces in England and Wales where individuals had been charged or cautioned under section 127 of the Communications Act and the Malicious Communications Act.
Under the Communications Act, it is an offence if someone "sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
Under the Malicious Communications Act it is an offence if someone sends an electronic communication to another person "which conveys a message which is indecent or grossly offensive; a threat; or information which is false and known or believed to be false by the sender; or ... which is, in whole or part, of an indecent or grossly offensive nature" if a purpose of the communication was to "cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated".
BBW called for section 127 of the Communications Act to be repealed. It said the legislation was "all too often used to get an easy conviction" and is "out of date".
It also said that the wording 'grossly offensive' should be removed from the Malicious Communications Act because it is "highly subjective and causes more problems than it solves" and because BBW believes "it shouldn’t be a crime to cause offence".
"The wording sets a very dangerous precedent, without a clear definition it is very difficult to ensure a standardised approach across police forces in the types of cases that require their attention," BBW said.
The BBW report highlighted the case of Paul Chambers, the man prosecuted and subsequently cleared of a criminal offence under the Communications Act in a case dubbed the Twitter 'joke' trial. In 2010 Chambers had posted a message on Twitter which read: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"
Chambers had claimed the message was a joke but he was originally fined £385, ordered to pay £600 in legal costs and found guilty of a criminal offence under the Communications Act. That ruling was overturned in 2012, but not until after he had lost two jobs as a result of the conviction.
In the foreword to the BBW report, John Cooper QC, Paul Chambers' defence barrister , said that there is "more than enough law to deal with potential criminal offences" on social media but said the various provisions are "scattered over legislation placed on the statute book between 1861 to 2003" leading to "confusion and inconsistency". Cooper said: "For the law to be respected and trusted, it must be both relevant and above all fit for purpose."
Following the Chambers case, the Crown Prosecution Service issued new guidelines for public prosecutors on when to initiate legal action against those who breach UK communications laws on social media. The guidance, amongst other things, called on prosecutors to recognise individuals' rights to free speech when deciding whether to initiate legal action over comments made on platforms such as Twitter or Facebook.
However, BBW said that the guidelines fail to address the underlying issue that the Communications Act is outdated.
"A year on from the publication of the guidelines, these points remain areas of concern," BBW said. "As more cases occur, these issues will remain unless real and effective reform is undertaken as a matter of urgency."
According to the BBW research, at least 355 of the 6,329 cases relating to alleged breaches of section 127 of the Communications Act and the Malicious Communications Act handled by the police between 1 November 2010 and 1 November 2013 involved communications made via social media.
However, BBW said that only 18 of the 42 police forces it asked for information had provided a breakdown of the cases where social media communications were involved. This makes it "difficult to build up a truly accurate picture" of how the communication laws are "being used to prosecute individuals for social media crimes", it said.
BBW called on police forces to "begin recording accurate statistics" and said there should be a "common approach" across forces and public prosecutors to enforcement of a reformed communication laws framework.
"There should be a clear system put in place to educate officers and prosecutors how best to deal with social media crime," it said.