Lords: Current laws sufficient for social media offences

The House of Lords Communication Committee, in its report on social media offences, has come to the conclusion that current laws are sufficient. Laws such as the Protection from Harassment Act 1997, and the Communications Act 2003, together with guidance from the Director of Public Prosecutions (DPP) are enough to ensure that offences committed via social media can be prosecuted. The Committee took the view that the acts in question (such as harassment, or threats of violence) are already covered by the criminal law. The fact that they are committed on social media does not make them a different type of act; rather social media merely provides a new platform for the behaviour in question. The Committee concluded that what is not an offence offline should not be an offence online.

The Committee considered the balance to be struck between freedom of expression online, including the freedom to make offensive statements; and implementing the law in relation to online behaviour where that behaviour crosses the line from merely offensive into criminal.

The report noted that online behaviour which falls short of criminal may still be actionable in private law, for example in defamation, privacy or under the Data Protection Act 1998. The Committee expressed concern that a privacy injunction such as that obtained in Contostavlos v Mendahun ([2012] EWHC 850 (QB)) is only available via the potentially expensive route of taking High Court action.

Although recommending no new offences, and praising the existing guidance from the DPP, the Committee called for:

• Further clarification from the DPP as to when an indecent communication (such as an ex-partner posting intimate material online, so-called “revenge pornography”) may be subject to prosecution;
• Website operators such as Facebook and Twitter to speed up compliance with requests from law enforcement agencies for identification of individuals under the current law;
• Better collection of statistics on offences committed on social media;
• Section 39 Children and Young Persons Act 1933 which restricts reporting by newspapers in relation to children involved in criminal proceedings should also cover electronic communications and social media;
• Website operators to explore developing systems capable of preventing online harassment, and effective self-help processes;
• Parents and schools to understand the full extent of the problem of offences being committed online and to teach children that offensive communications online may be just as wrong as if they happened face-to-face.

The Committee also supported the proposal to make the offence under section 1 Malicious Communications Act 1988 (sending indecent or grossly offensive communications) an offence triable either way, with an increased maximum penalty of 2 years imprisonment. This amendment is currently clause 27 of the Criminal Justice and Courts Bill, and is designed to deal with revenge pornography.

The report and supporting documents are available here.