Social media and criminal offences - Communications Committee Contents


CHAPTER 4: OTHER ISSUES


Children

71.  Society grants a leniency to children for some behaviour which would be prosecuted as criminal if done by an adult. In England and Wales, children below the age of 10 are not generally held to be capable of committing a crime. Special guidance from the Director of Public Prosecutions applies to considering whether to prosecute a child between the ages of 10 and 18. This is not because society considers that children between the ages of 10 and 18 may behave with impunity; instead it considers that it is usually proportionate for parents and schools to take proportionate remedial action and to educate the child as to appropriate behaviour.

72.  The Code for Crown Prosecutors says that prosecutors must have particular regard to:

    "was the suspect under the age of 18 at the time of the offence? … The best interests and welfare of the child or young person must be considered including whether a prosecution is likely to have an adverse impact on his or her future prospects that is disproportionate to the seriousness of the offending … As a starting point, the younger the suspect, the less likely it is that a prosecution is required …

    However, there may be circumstances which mean that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest. These include where the offence committed is serious, where the suspect's past record suggests that there are no suitable alternatives to prosecution, or where the absence of an admission means that out-of-court disposals which might have addressed the offending behaviour are not available"

73.  This is generally thought to be proportionate and appropriate: the criminal justice system can intervene when it needs to do so.

74.  Our inquiry is limited to consideration of the law. It strikes us though that parents and schools have a responsibility generally to educate children: children need to be taught that being horrid online is just as wrong and hurtful as being horrid face to face. Similarly, parents have an essential responsibility to protect their children from harm on the internet as they do when children are in any other public space. Schools have an opportunity to draw to parents' attention when they detect that parents might need to intervene. How most appropriately and effectively to approach this is a matter we have not considered. It strikes us as unlikely that simply banning access would be effective.

Balances: law v policy interventions

75.  We have limited this inquiry to an investigation of the law, but the law is rarely the most effective tool for changing behaviour: effective law tends to reinforce, rather than in itself change, social attitudes.

76.  At present, the law prohibits people from sending grossly offensive messages but people send them nonetheless, and in great number, in part due to the ease with which the internet and social media facilitate communications. The threshold for prosecution is rightly high. This prevents the courts from being overwhelmed with inappropriate cases, but it does not reduce (let alone prevent) inappropriate complaints to the police. As John Cooper QC put it: "the police are being inundated with spurious complaints … They cannot investigate every transgression on the social media".[30] The consequence is that there is every chance that offences which deserve to be prosecuted will not be, due simply to the volume of complaints.

77.  A victim has to be confident that an offence has been committed; the police constable to whom the offence is reported needs to understand what offence has been committed and whether it is initially proportionate to consider the matter criminal or whether some other course of action should be taken. Other than gradual, general social education, there is no efficient way to address this. The advertisement of the law and of rules on websites is desirable, but not very effective. The widespread publicity given by the traditional media to the conviction of people prosecuted for committing offences using social media does more to educate than any advertisement. We welcome the efforts of the police to educate themselves about the relationship between social media and criminal offences and hope that this will extend to the officers with whom the public are most likely first to come into contact.

78.  In the light of the volume of offences, society has four options: i) do nothing and accept the status quo; ii) add resources so that more allegations can be investigated and prosecuted; iii) change the law so that the behaviour is no longer criminal; iv) retain the law and approach to prosecutions, but seek to change behaviour through policy interventions.

Website operators

ATTITUDE

79.  Both Facebook and Twitter presented themselves to us less as corporations responsible as legal persons under the law, and more as communities who operate according to their own rules.[31]

80.  Those rules can be admirable: Facebook has a real name culture, a set of community standards (e.g. regarding nudity), enables people to control their own privacy, and enables the reporting of abuse;[32] Twitter have rules against threats of violence, targeted harassment and similar issues. Other operators are less responsible. Irrespective of the responsibility of the website operators, the behaviour with which we are concerned is criminal.

MONITORING

81.  The number of staff employed to consider reports of content or conduct is inevitably inadequate to the scale of use of the website. Globally, Facebook employ "hundreds" of people in this area; Twitter "in excess of 100".

82.  Facebook has developed technology to prevent or quickly stop the posting of certain material, for example child sexual exploitation.[33] Similarly, systems urgently flag for human intervention the most serious types of report, such as suicide or self-harm[34] but the systems are not perfect because the traffic on the site is varied and can irrationally spike. We received no evidence about the speed or proportionality with which less serious types of report were processed.

83.  These actions in our opinion have been driven by the companies' own values and by the market, not by law. Many website operators are significantly less responsible.

84.  We encourage website operators further to develop their ability to monitor the use made of their services. In particular, it would be desirable for website operators to explore developing systems capable of preventing harassment, for example by the more effective real-time monitoring of traffic.

SELF-HELP

85.  Every user of Facebook can control the extent to which other users may interact with them: privacy settings. Facebook has introduced a tool to report abuse; and also a tool whereby user A may ask user B to remove a post (usually a photograph) in which the user A is portrayed. Facebook told us that in 85% of cases, user B complies.[35]

86.  Self-help, as in the ability to block sight of abuse, is valuable but its value is limited when the abuse remains in the public domain. We encourage website operators further to develop the effectiveness of measures to enable individuals to protect themselves when using social media services.

87.  It would be desirable for website operators to publish statistics on monitoring and self-help.

LIABILITY AT LAW

88.  A European Union directive[36] has harmonised provision on electronic commerce, including the liability of websites which host content originated by others. That directive is implemented in United Kingdom law in the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013). Those regulations give immunity to websites from damages or criminal sanctions where they act merely as a conduit, cache or host, so long as they operate an expeditious "take down on notice" service. This acts as an incentive to website operators to remove illegal or actionable material. It is for the website itself to determine whether the material which they have been asked to remove is genuinely illegal or actionable.

89.  The Defamation Act 2013 goes one step further. Section 5 creates a defence to an action for defamation for the operator of a website to show that it was not the operator who posted the statement on the website. The defence is defeated if the claimant shows that it was not possible for the claimant to identify the person who posted the statement, the claimant gave the operator a notice of complaint in relation to the statement, and the operator failed to respond to the notice of complaint in accordance with regulations made by the Secretary of State.[37] The act thus incentivises website operators not only to operate an expeditious and proportionate "take down on notice" service but also to be capable of identifying people who post statements using their websites.

90.  Parliament has thus accepted the view that the liability of website operators should be limited in respect of content they host but which they have not originated. It is however significant in being the first statute in this country to link immunity from liability to disclosure of the identity of the person who made the statement. It might well prove desirable to extend this approach to criminal offences capable of being committed using social media. It is however premature to decide until society has useful experience of its operation.

91.  Website operators are not necessarily accessories in liability to crimes. The law could be changed to clarify this.

92.  Another approach might be the establishment by law of an ombudsman, funded by website operators, to set policy and consider complaints in this area. Although not a solution to every problem, it is desirable to have a well-developed system of self-policing and self-regulation.

JURISDICTION

93.  It is trite but necessary to say that the global nature of the internet raises difficult questions as to jurisdiction. Facebook and Twitter offer their services across the globe, as do most social media website operators. A fundamental benefit of the internet is the way in which it has interconnected the whole of the world. Facebook and Twitter are both publicly listed companies incorporated in the United States of America which operate data centres in a number of countries but not the United Kingdom.[38] They are by no means unusual in operating in this way. When a website operator develops a technology automatically to prevent something bad, it inevitably needs to do so to some common international standard: it is not feasible that it should consider the drafting of section 1 of the Malicious Communications Act 1988. It is though feasible that every democratic state should expect automatic cooperation from website operators in relation to the detection and prosecution of crime. Similarly, there is at present inevitable uncertainty as to the ability of our courts to try offences when the person committing the offence, the host or publisher and the victim might each be based in a different country. The only way as we see it to resolve questions of jurisdiction and access to communications data would be by international treaty.[39] The question is though relevant to many more areas of the law and public protection than criminal offences committed using social media and is politically contentious in most countries. This raises issues beyond the scope of this inquiry.


30   Q 7 Back

31   QQ 25, 26; cf paragraph 63 Back

32   Q 26 Back

33   Q 26 Back

34   QQ 27, 30 Back

35   Q 26 Back

36   Directive 2000/31/EC on electronic commerce, articles 12 to 15. Back

37   Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028) Back

38   When we asked both Facebook and Twitter to give us specific data about an element of their operations, they were unwilling to do so. We found both companies obliging witnesses but, if we had wished to press them for the data, we would have had no power to compel its release because neither company operates formally in the United Kingdom. Back

39   The Data Retention and Investigatory Powers Act 2014 has sought to extend the extraterritorial effect of the Regulation of Investigatory Powers Act 2000. Back


 
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