New laws on the use of social media: An important tool to prevent online bullying or an encroachment of freedom of speech?

New laws governing the use of social media platforms, and tougher sentences for communication networks crimes, could lead to a sharp rise in criminal prosecutions and harsher punishments for those convicted.

The Sentencing Council recently announced that, from April, it will be implementing more punitive sentences on individuals who commit Communications Act offences. The harsher punishments have been introduced to bring sentences in line with magistrates’ increased sentencing powers.

Breaches of section 127(1) of the Communications Act 2003, which makes it an offence to make obscene or menacing calls, are currently punishable by up to 12 weeks’ custody. However, from April, such breaches will be punishable by up to 15 weeks’ custody.

At the end of last year, the Crown Prosecution Service announced new guidance on ‘social media crimes’, which followed the introduction of an already increased range of online offences, such as ‘revenge porn’, which was introduced in 2015 by the Criminal Justice and Courts Act 2015, and has led to the prosecution of more than 200 people across England and Wales. The Malicious Communications Act 1988 was also amended in 2015 and now states that, for the offence of “sending letters etc with intent to cause distress or anxiety”, so-called ‘internet trolls’ may now be sentenced to a term of up to two years imprisonment.

The latest CPS guidance highlighted and defined three main categories of offences:-

Virtual mobbing’ is an act which encourages others to participate in online harassment campaigns, in other words ‘egging on’, and which will now carry a charge of ‘encouraging an offence’ under the Serious Crime Act 2007.

Doxxing’ is a practice in which online users make personal information public, such as a home address or bank details, and can also amount to criminal behaviour. Similarly, users who create derogatory hashtags to encourage harassment can be charged.

Baiting’ is the practice of humiliating a person online by labelling them as sexually promiscuous or posting ‘photoshopped’ images of people on social media platforms.

While the guidance was introduced to help inform decisions on whether criminal charges should be pursued, it poses a risk that innocent users of social media platforms could also fall foul of sanctions or criminal investigation.

The CPS, in defending against arguments supporting the protection of freedom of speech, reiterated that its intention is solely to identify, prosecute and prevent hate crime born from social media use. However, it has argued that the guidance on social media crimes could potentially cover a much wider range of online behaviour than specifically intended to.

Either way, it is clear that the internet can no longer be used as an anonymous space where web users can post without repercussions.

With Alison Saunders, Director of Public Prosecutions, stating the announcement means the CPS would prosecute just as if offences occurred offline, the need for legal representation could prove vital. To safeguard against that eventuality, it is also advisable for businesses to ensure its employees do not break the increasingly stringent laws regulating the use of social media.

If you would like to discuss any of the matters highlighted in the article, please contact Daniel Martin on 01784 273 907 or email dcm@blasermills.co.uk