Over the last four years or so the social media community has grown beyond belief and the world is truly connected like never before. Twitter, Facebook & LinkedIn seem to be the most popular social media sites in the UK, but there are thousands of similar online communities which are equally as accessible.
According to the Guardian, in 2012, 4908 social media related crimes were reported to Police forces across England, Scotland & Wales compared with just 556 in 2008. This represents an increase of some 780% in the last four years which actually doesn’t come as much of a surprise given that logic dictates more people, more problems!
The DPP, Mr Keir Starmer QC, has provided Interim guidelines on prosecuting cases involving communications sent via social media, which effectively draws a strict distinction on those cases which should be prosecuted and those which shouldn’t. The DPP has stated that communications that are credible threats or amount to a campaign of harassment will be robustly prosecuted. However, those comments that are merely offensive have to be weighed against freedom of expression, therefore the right to hold opinions and impart information and ideas without state interference which is contained in Article 10 of the ECHR and incorporated into UK law via the Human Rights Act 1998.
As is the case with all crimes in the UK the Crown Prosecution Service must determine whether it is in the public interest to prosecute an offender and that decision must be based on the principles of proportionality. In respect of communications sent via social media the DPP has stated that removal of the offending tweet or facebook post will be a relevant consideration when determining whether to prosecute an individual. In effect, what he is saying is that removal of the offending tweet or post indicates a form of recourse which should be a factor taken into consideration when deciding whether to prosecute an offender. In the real world a comparison to this would be an apology, as of course it isn`t possible to simply delete what you have said to someone in real life.
When the CPS makes a decision to prosecute an offender in the UK a two part test is applied, namely the evidential test and the public interest test. When considering the factors taken into consideration in determining the public interest test it would appear that an apology is not a relevant factor to be taken into account, this is merely mitigation. The nearest factor to an apology seems to be ‘whether the suspect has put right the loss or harm that was caused’. Of course an apology doesn’t necessarily put right the loss or harm caused therefore it would appear that either a new factor is now taken into account when considering prosecutions in the UK or prosecution of cases involving communications sent via social media are dealt with differently than offences in the ‘real world’.
At present the DPP’s guidelines on prosecuting cases involving communication sent via social media are merely interim and are therefore subject to a consultation process which is set to conclude in March 2013.
What is clear from the interim guidelines is that a distinction has to be made between low level crimes and crimes that cause more serious harm because in reality the Police simply don’t have the resources to prosecute every minor offence. Of course they never have had the resources, but in the past the Police could easily rely on `a lack of evidence` not to prosecute where as now everything we post on twitter and facebook can be easily retrieved which means that evidentially the Police could potentially establish every complaint made to them.
It will be interesting to see how the UK adapts criminal law to meet the threats posed by social media. Clearly action needs to be taken hence the proposals put forward by the DPP but one has to wonder whether we will end up with 2 criminal laws, one for the real world, and another for the cyber world. How they would co-exist is anyone’s guess!
