New Social Media Guidelines CPS
| Author | Matthew Richardson |
| Pages | 249-266 |
Appendix A2
New Social Media Guidelines CPS
Introduction
1. ‘Social media’ commonly refers to the use of electronic devices to create, share or exchange information, ideas, pictures and videos with others via virtual communities and network.
2. Communications sent via social media may involve the commission of a range of existing offences against the person, public justice, sexual or public order offence They may also involve the commission of communications offences (‘the communications offences’) contrary to section 1 Malicious Communications Act 1988 (‘section 1’) and/or section 127 Communications Act 2003 (‘section 127’). These alternative possibilities are dealt with in Part
A. Broader issues in social media offending of whatever form are dealt with in Part B.
3. The following proposed decisions (or decisions, where CPSD with DCCP/CCP approval, has taken them given the urgency) must be referred to Special Crime and Counter-Terrorism for approval:
a. Any proposal to charge a communications offence where the allegation is one of gross offence, obscenity or indecency:
i. Section 1(1)(a)(i) and 1(1)(b);
ii. Section 127(1) save for the reference to ‘menacing’.
b. Any proposal to charge or NFA any communications offence (section 1 or 127) where directed towards a person of public prominence.
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4. Accordingly, decisions to NFA communications offences other than those relating to persons of public prominence do not require referral to the DLA. Decisions to charge offences other than those relating to persons of public prominence, contrary to section 1(1)(a)(ii) and (iii) and section 127(1) (menacing only) and (2), do not require referral to the DLA.
5. For approval of decisions, please contact Special Crime and Counter-Terrorism.
Part A: Offences – Substantive
6. Where social media is used to facilitate a substantive offence, prosecutors should proceed under the substantive offence in question, having regard as appropriate to the Hate Crime and VAWG sections below.
7. The following are potential offences against the person, against public justice or sexual offences, with links to the relevant guidance, which prosecutors may consider:
Making a threat to kill, contrary to section 16 Offences Against the
Person Act 1861
Making a threat to commit criminal damage, contrary to section 2
Criminal Damage Act 1971
Harassment or stalking, contrary to sections 2, 2A, 4 or 4A Protection from Harassment Act 1997
Controlling or coercive behaviour, contrary to section 76 Serious Crime
Act 2015
Blackmail, contrary to section 21 Theft Act 1968
Juror misconduct, contrary to sections 20A–G Juries Act 1974*
Contempt of court, contrary to the Contempt of Court Act 1981*
Publishing material which may lead to the identification of a complainant of a sexual offence, contrary to section 5 Sexual Offences (Amendment) Act 1992*
Intimidating a witness or juror, contrary to section 51 Criminal Justice and Public Order Act 1994
Breach of automatic or discretionary reporting restrictions, contrary to section 49 Children and Young Persons Act 1933 and section 45 Youth Justice and Criminal Evidence Act 1999
Breach of a restraining order, contrary to section 5 Protection from
Harassment Act 1997
* Note that these offences require Attorney General’s consent to prosecute and should be referred to the DLA Team prior to any such submission.
Disclosing private sexual images without consent (‘revenge pornography’), contrary to section 33 Criminal Justice and Courts Act 2015
Causing sexual activity without consent, or causing or inciting a child to engage in sexual activity, or sexual communication with a child contrary to sections 4, 8, 13, 15A Sexual Offences Act 2003.
Taking, distribution, possessing or publishing indecent photographs of a child, contrary to section 1 Protection of Children Act 1978 Allegations contrary to Part III Public Order Act 1986 should be referred to Special Crime and Counter Terrorism Division.
8. The act of setting up a false social networking account or website, or the creation of a false or offensive profile or alias could amount to a criminal offence, depending on the circumstance For example:
The former estranged partner of a victim creates a profile of the victim on a Facebook page, to attack the character of the victim, and the profile includes material that is grossly offensive, false, menacing or obscene.
A ‘photoshopped’ (digitally edited) image of a person is created and posted on a social media platform. Although many photoshopped images are humorous and inoffensive, others are disturbing or sinister, such as the merging of a person's face with the nude body of another to create obscene images, which may be accompanied by offensive comment.
9. Depending on the circumstances, this may be a way in which one of the offences above are committed, or it may be a way in which a communications offence (as these include ‘false’ communications or messages) is committed.
Part A: Offences – Communications Offences
10. Where social media is not being used to commit another substantive offence, prosecutors may turn to consider the communications offences available.
Selection of Charges
11. The first question for prosecutors to consider is identifying the appropriate offence. Section 1 is an either-way offence. Upon conviction on indictment a defendant may face a maximum sentence of 2 years’ imprisonment and/or an unlimited fine. Section 127 is a summary only offence, but with a statutory provision as to time limit (see below).
12. In the case of communications which are not via a public electronic communications network (whether other electronic communications, or letters), section 1 will be the only available offence.
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13. For all allegations concerning a public electronic communications network (a service provided for and funded by the public, for the benefit of the public, and thus catching the internet and mobile phone networks widely available to the public: Chambers v DPP [2012] EWHC 2157), the starting point should be section 127. It will often (but not always) be the case that section 127 will meet the requirements of section 6 of the Code for Crown Prosecutors. Absent the need to provide to the court greater powers of sentence, it is likely to be the appropriate charge for public electronic communications network offences.
14. Where section 1 is being considered, however, prosecutors should note:
The mental element of this offence is that the suspect’s purpose, or one such purpose, is that the message should cause distress or anxiety to the recipient or to any other person to whom it is intended that the message or its contents or nature should be communicated. This is a higher standard than that for section 127. In Chambers, the Court confirmed that the section 127 offence involves proof of an intention that the message should be of a menacing character or alternatively, proof of awareness or recognition of a risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. It is submitted that this mens rea applies equally to the other elements of this offence.
Section 1 requires the sending of a letter, electronic communication or article of any description to another person. Depending on the facts of the case, a social media communication which is merely a blog or a comment posted on a website may not suffice as sending to another. Prosecutors should consider the evidence that the communication was addressed (either by name or in terms) to a specific recipient, and how likely that the specific recipient was to receive it (did they also have a Twitter or Facebook account?) Section 127 requires only that the message or other matter is sent, and so this will cover the posting of a message, and indeed re-posting or other sharing of a communication.
15. Those who encourage communications offences, for instance by way of a coordinated attack on a person, may be liable to prosecution under the provisions of sections 44 to 46 Serious Crime Act 2007.
Section 127 Time Limit
16. Not withstanding that section 127 is a summary offence, section 127(5) provides: ‘An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made —
a. before the end of the period of 3 years beginning with the day on which the offence was committed, and
b. before the end of the period of 6 months beginning with the day on...
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