Social media offences
Social media is part of everyday life and is often a positive experience.
However, just because it isn't face to face communication doesn't mean you can say what you want without any risks.
Technology plays a vital role in daily life, normally for positive purposes, however when things turn sour communication between people can deteriorate quickly, especially when parties need to maintain a dialogue for children or have shared friends and financial responsibilities.
Offences can occur via abusive communication on varied platforms, including phone calls, texts, WhatsApp, video calls, email, letter, and social messaging via Facebook, Instagram, Twitter etc. There is the additional issue that often the communication is there in black and white, many people have said things in the heat of the moment that they regret, but unlike face to face communication it is difficult to refute what was said when it can be read by anyone if the evidence is retained.
Negative communication between parties can result in specific charges of malicious communications or an offence under the Communications Act, but the same behaviour can lead to separate charges of harassment.
A mere allegation of a social media offence can be enough to result in arrest or a voluntary interview. This can lead to restrictive bail conditions, a charge and a court case.
Police investigations and Court hearings can have a dramatic impact on day to day living. Any caution or conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check.
Loopholes to consider
Below I have outlined this area of law and defences.
Loopholes are legitimate lines of defence that take into account all the small areas of law.
Loophole defences that may be appropriate to social media offences may include:
Can it be proven that the communication came from your account?
Even if it came from your account can it be proven that you sent it?
Is the message actually offensive, indecent or threatening?
Is this normal language between you and the other person?
Can the message be considered as freedom of speech?
Is the information true?
Can intent to cause distress or anxiety be proven?
Do you have witnesses to help prove your account?
Do you have other evidence to help prove your account?
Social media offences explained
Malicious Communications and offences under the Communications Act offences are different offences but they overlap each other.
Both cover offences that occur via phone, internet, email or social media, whereas Malicious Communications also any includes any other form of communication, such as letter.
Malicious Communications is more serious as it carries a maximum sentence of 2 years imprisonment compared to 6 months for a Communications Act offence.
Malicious Communications requires the sending of a letter, electronic communication or article of any description to another person which conveys a message that is grossly offensive or indecent, or conveys a threat, or conveys information which is false and the sender knows or believes to be false.
Importantly, for Malicious Communications the mental element required for a prosecution is that the suspect intends that the message should cause distress or anxiety to the recipient. This provides an area of defence for the suspect.
A Communications Act offence requires that the message or other matter that is sent is grossly offensive, or of an indecent, obscene or menacing character. The mental element required is lower, it only requires that it was sent, knowing that it is false, for the purpose of causing annoyance, inconvenience or needless anxiety to another.
Proof that the alleged suspect sent the message is key, even if the call, text, email or message came from the suspect’s number, email or social media account, it doesn’t necessarily prove it was the suspect that sent it. The victim may need to provide further evidence as to why it is believed it came from the suspect, such as the topic discussed and the wording or manner of delivery that is uniquely attributable. Likewise, obtaining evidence to disprove a suspect’s involvement in the communication is crucial to avoiding a charge.
Although it is beneficial for a prosecution that a victim provides evidence of the impact of the message sent, as neither offence requires proof of receipt of the message by a victim, or proof that it caused gross offence or fear or apprehension it may not be even necessary for a witness to be called to give evidence to prove a case, ultimately it is for the Court to assess the character and nature of the message.
These offences are often alleged but less commonly charged. However, abusive communication and social media messages very commonly form the basis for alternative charges, especially harassment, as two such incidents of abuse via social media could be enough for a charge. Also, where a restraining order or non-molestation order is in place, any such communication may be sufficient to trigger a breach of restraining order or breach of non-molestation order.
The final social media area to consider is cyberstalking. It is described as a threatening behaviour or unwanted advances directed at another, using forms of online communications.
There is no specific legislation to address the behaviour but it can be encompassed within Malicious Communications and offences under the Communications Act, such online harassment is often combined with other forms of 'traditional' stalking or harassment, such as being followed or receiving unsolicited phone calls or letters.
Examples of cyberstalking may include:
Threatening or obscene emails or text messages
Spamming, where the offender sends the victim multiple junk emails
Live chat harassment or 'flaming', a form of online verbal abuse
"Baiting" or humiliating peers online by labelling them as sexually promiscuous
Leaving improper messages on online forums or message boards
Unwanted indirect contact with a person that may be threatening or menacing such as posting images of that person's children or workplace on a social media site, without any reference to the person's name or account
Posting photoshopped images of persons on social media platforms
Hacking into social media accounts and then monitoring and controlling the accounts
Sending electronic viruses
Sending unsolicited email
Cyber identity theft