Communications: Social Media

Oliver Heald Excerpts

Tuesday 26th February 2013 Westminster Hall

[The Solicitor-General (Oliver Heald)]

It is a great pleasure to serve under your chairmanship, Mr Dobbin. I congratulate the hon. Member for Liverpool, Walton (Steve Rotheram) on securing the debate. It is a topic about which he feels strongly and on which he has led and campaigned for some time. I agree that the sort of behaviour that he has described in this debate and on earlier occasions is completely unacceptable and wrong and must be tackled.

My hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) and the hon. Gentleman made the point that a multi-agency set of different approaches are needed if the issue is to be tackled effectively. My hon. Friend mentioned defamation, and the hon. Gentleman will be aware of some of the constructive work being done with media sites to ensure that comments are taken down quickly and effective action is taken, but much more can be done.

I start by addressing the hon. Gentleman’s four questions. The interim guidelines distinguish a range of different kinds of behaviour in the social media field. I am sure he would agree that a prosecutor would tackle a case where there is a credible threat of violence, for instance, differently from another case. Similarly, if an individual is being targeted and harassed persistently, that is another kind of case. There are offences that can be used to prosecute particular kinds of conduct.

There are cases involving activities such as credible threats or harassment, therefore, and then all the other cases, which can vary widely in what they involve. They do not necessarily have the aggravating factors that would lead a prosecutor to charge someone with a serious indictable offence such as threats to kill, or harassment, but it does not follow that the cases in that other category, which are so different from each other, will not be prosecuted. In fact, the guidance is designed to cover the whole field.

Secondly, the wording of paragraph 12 is subject to public consultation. I will ensure that what the hon. Gentleman said today is conveyed to the Crown Prosecution Service, so that his comments are not only on the record in this place but part of the consultation. The approach taken in the interim guidelines is to distinguish offending of different gravity. A case of trolling, which, broadly speaking, is social media jargon for posting provocative or disruptive messages, can fall into any one of the categories of offending set out in the interim guidelines, depending on the facts.

Thirdly, I thank the hon. Gentleman for drawing attention to work in the academic sphere to develop technology and expertise that might assist the police in the investigation of such offences. The consultation extends to those with an interest in such matters. The police, certainly, are interested in the techniques. Finally, there is the question of whether statutory time limits need to be extended. That needs to be considered in the context of the consultation. The issue is important.

More generally, I provide assurance that the CPS can and does prosecute cases successfully. The CPS reports an increase over recent months in the number of social media cases. Since the publication of the interim guidance on 19 December, the principal legal adviser to the Director of Public Prosecutions agreed that 15 cases should be proceeded with by prosecution. The interim guidelines issued by the DPP have been developed to assist prosecutors. They were also developed in conjunction with the Association of Chief Police Officers. The idea is that points of the sort that the hon. Gentleman made about the academic evidence can be taken into account in the consultation. It is important to remember that the police investigate offences and gather the evidence, and that the guidelines are intended to help them as well.

The public consultation provides an opportunity for practitioners, other interested parties and the general public to contribute to the framing of the final guidance. I hope that the hon. Gentleman agrees that we should urge people with an interest in the issue to take part; I will ensure, as I hope he will, that as many colleagues as possible and those outside this place take the opportunity.

The interim guidelines set out four broad categories for prosecutors to consider when deciding on the appropriate charges. Have there been credible threats of violence? Are there communications that specifically target an individual? Has there been a breach of a court order? Finally, does the communication breach section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003, which the hon. Gentleman mentioned?

Malicious communication may warrant a far more serious charge being pursued. The interim guidelines are aimed at requiring the prosecutor to consider a range of potential offences that might arise. The hon. Gentleman rightly highlighted the deeply unpleasant practice of trolling in the case of Georgia Varley—a website set up to commemorate that young girl’s life was targeted. Under the interim guidelines, prosecutors are reminded that communications used to threaten and target others can give rise to a range of serious offences. The hon. Gentleman is right: the person who died would not be the target in such circumstances, but the relatives and the people who cared for that individual are targeted, or can be. When a particular person is targeted but a harassment charge is not possible, because of the legal requirements, clearly prosecutors would carefully weigh up whether they can take the case under section 1 of the Malicious Communications Act. It might well be in the public interest to do that.

Similarly, section 127 of the Communications Act provides an important safeguard against the misuse of social media, such as the sending of grossly offensive messages. The wording of the legislation is broad enough to encompass quite a range of behaviour. The guidelines should assist prosecutors in assessing each individual case. We do not want to restrict free speech but, as the hon. Gentleman said, with rights come responsibilities. While recognising important principles of free speech, the interim guidelines do not offer a charter for those who want deliberately and repeatedly to harass and cause distress. It is important to recognise that.

Another point to make to the hon. Gentleman is that paragraph 12.4 of the interim guidelines, the large category of messages, is set out as a particular category. There is then an analysis of the court cases concerning sections 1 and 127—the judges’ comments and how the cases should be looked at in the European context. All that is examined. Finally, there is a paragraph that deals with what the threshold would have to be in order to prosecute cases. It is therefore a more reasoned and complex exercise than might have been thought.

The requirement of prosecutors to prosecute cases of this sort has been demonstrated in cases that the hon. Gentleman is aware of, such as that of Sean Duffy, who was successfully prosecuted and sentenced to 18 weeks’ imprisonment following the death of a young lady. Matthew Woods was prosecuted under section 127 of the Communications Act and sentenced to eight weeks’ imprisonment for posting on a Facebook page grossly offensive messages regarding the missing children, April Jones and Madeleine McCann. It is wrong, however, to think that those would be the only cases involving social media to be charged and brought before the courts with the risk of imprisonment. Such offences are very much the ones that do not involve threats to kill, blackmail allegations or harassment charges. The hon. Gentleman should bear in mind that there are offences involving indictment and Crown court trials, with substantial sentences available, that could be used in appropriate cases.

The consultation runs until 13 March—