A new report (February 2015) from Big Brother Watch entitled Careless Whispers: how speech is policed by outdated communications legislation makes for an interesting read.
The report argues that while social media has revolutionised the way in which we communicate, the law has not kept up with the main legislation (section 127 of the Communications Act 2003) which was enacted before Facebook or Twitter even existed.
Social media crimes
Although information from police forces was limited, it is clear from the table below that the number of social media crimes investigated and prosecuted is rising rapidly. The figures (which were obtained via a Freedom of Information request) are for charges and conviction for Section 127 Communications Act and Malicious Communications Act offences for the three-year period November 2010 – November 2013.
As you can see, more than a quarter of communications offences in Suffolk relate to cases involving social media. It seems to me a reasonable assumption that the number and proportion of communications offences involving social media has increased in the 15 months since November 2013.
Big Brother Watch argue that the outdated nature of the law is why we are seeing an increase in legal cases involving comments made on social media. The most notorious example is of course the #Twitterjoketrial in which Paul Chambers was convicted of using a “public electronic communication network” to send a “message of menacing character”. In plain English, he sent the following tweet (apologies for the poor quality reproduction, the original was, of course, deleted a long time ago):
Mr Chambers later had his conviction overturned by the High Court and in June 2013 the Crown Prosecution Service published guidelines on how to prosecute cases involving social media.
Big Brother Watch find these guidelines unsatisfactory; in particular they take issue with the guidance that “prosecutors are required to demonstrate the case would be in the public interest before any trial proceeds.” Adam Wagner, a barrister specialising in civil liberties, argued that he couldn’t think of a single case that could be brought in the public interest which wouldn’t have a “disproportionate chilling effect on free speech.” [You can follow Adam on Twitter @adamwagner1]
In addition to arguing for a reform of the law, the report also quite reasonably calls for the police to adopt a standardised approach to recording and combating social media crime. Without a reliable evidence base, it’s hard to scrutinise whether the law is being used proportionally.
My view is that we still have some way to go before we get the balance right between preventing victimisation and preserving free-speech. The ideal is for social media networks to police themselves, but you only have to look at some of the outrageous, sexually violent tweets that many women routinely encounter online to know that this approach isn’t always sufficient.