Rhory Robertson quoted in LexisNexis article regarding new guidance on online offences

12 Oct 2016

Article by Jessica McCarthy for LexisNexis:

CPS guidance signals ‘shift’ in approach to social media abuse

LNB News 10/10/2016 133

The Crown Prosecution Service (CPS) has published guidance on offences for which social media users could face prosecution. It is designed to assist prosecutors in deciding whether criminal charges should be pursued, as well as ensuring consistency across the CPS. The guidelines make clear that those who encourage others to harass victims online can face charges of encouraging an offence. It also alerts prosecutors to cyber-enabled violence against women and girls (VAWG) known as ‘cyber-stalking’. The guidance also provides information for prosecutors dealing with cases of ‘sexting’ which involve images of under-18-year-olds. Lawyers tell LexisNexis the cost of identifying and prosecuting the perpetrators of online abuse remains a significant barrier for the CPS. Nevertheless, the guidance signals 'a shift in thinking' as regards online offences.

Virtual mobbing

The CPS has said those encouraging others to harass victims could be charged under the Serious Crime Act 2007. According to the CPS, such encouragement can lead to a campaign of harassment or ‘virtual mobbing’. Examples of encouragement include:

• publishing personal information of victims

• creating a derogatory hashtag

• encouraging social media users to ‘re-tweet’ an offensive image or message

Cyberstalking

CPS has noticed social media increasingly being used to perpetrate cases of VAWG and has termed such behaviour ‘cyber-stalking’.

Although there is no legal definition for cyber-stalking, the CPS has described it as threatening behaviour or unwanted advances directed at another, using forms of online communications. Examples of cyberstalking include:

• ‘baiting’—humiliating peers by labelling them as sexually promiscuous

• hacking, monitoring and controlling another person’s social media accounts

• posting photoshopped images someone else on social media

Director of Public Prosecutions (DPP) Alison Saunders has said: ‘Social media can be used to educate, entertain and enlighten but there are also people who use it to bully, intimidate and harass.’

Ms Saunders added: ‘Ignorance is not a defence and perceived anonymity is not an escape. Those who commit these acts, or encourage others to do the same, can and will be prosecuted.’

Sexting

The CPS has advised prosecutors that care should be taken when considering ‘sexting’ which involves im-ages taken of under 18-year-olds. It believes it would not usually be in the public interest to prosecute the consensual sharing of sexual images between two children of a similar age in a relationship.

However, the CPS maintains prosecution may be appropriate in other scenarios, such as those involving:

• exploitation

• grooming

• bullying

Defining criminal behaviour online

Harassment solicitor at Brett Wilson, Max Campbell, believes part of the problem law enforcement agencies face when it comes to anti-social behaviour online is defining what is ‘criminal’ in nature. He tells LexisNexis enormous strides have been made, although the number of prosecutions remain small compared to the number of people report online abuse.

Mr Campbell says: ‘The CPS should aim to ensure:

• people who report online offences are given the same respect as victims of other crimes

• police officers and prosecutors understand the difference between unsavoury and criminal behaviour

• the most serious cases are identified and the public interest test for prosecution is applied consistently’

Online anonymity

Kingsley Napley partner Jill Lorimer believes the online anonymity internet trolls enjoy remains a significant barrier to prosecution. However, she tells LexisNexis: ‘The CPS is acquiring more experience and expertise in pursuing such investigations. As it does so, its ability to investigate and prosecute individuals who would at one point have regarded themselves as untouchable is undoubtedly being enhanced.’

Max Campbell agrees, adding that where time and money are available, the identity of anonymous ‘trolls’ can normally be discovered using a series of disclosure applications, coupled with follow-up investigations: ‘Unfortunately, it will not be possible for the state to justify such expenditure and use of resources in all cas-es. There will often be jurisdictional issues too.’

Guidance signals shift in thinking

Collyer Bristow consultant Rhory Robertson says the guidance signals a 'shift' in the way the government and law enforcement agencies think about online abuse: ‘Five years ago no one took this seriously, but now online abuse is so prevalent, and can be so damaging—particularly for young people, anything which em-powers victims and sheds light on the issue is to be welcomed.’

Jill Lorimer thinks the guidance will assist prosecutors in allocating their resources in the right way. She says: ‘The more of these cases which are pursued—particularly those which attract high levels of publicity, the more people may think twice about engaging in conduct which might fall foul of the law.’

 

Source: Guidance: Guidelines on prosecuting cases involving communications sent via social media