Emma Carr is Director of Big Brother Watch.
The intention behind Justice Secretary’s announcement that the maximum prison sentence for online abuse will be raised from six months to two years is admirable, but his plans fall entirely short of the mark in tackling the actual problem. What is being offered will do nothing to quell those intent on threatening people, but I am certain that it will be used as a means of attacking those who merely express an unpopular opinion online.
Rather than tinkering at the edges of the current legislation, there are two key things that the Justice Secretary should be focusing his efforts on: ensuring that the communications legislation is fit for the social media age; and that the police and prosecutors are acutely aware of when it is necessary and proportionate to arrest and prosecute someone for comments made online.
Firstly, what is required is a complete revamp of the legislation that is being used to help govern the communications made on social media platforms. As it stands, the laws, such as the Malicious Communications Act 1988, the Harassment Act 1997, and the Communications Act 2003, were drafted before Facebook and Twitter were invented. It was therefore the purpose of combating the misuse of traditional communications, such as threatening phone calls, that the Parliamentarians of the day had in mind. As a result, they cannot be expected to have thought about how the internet could change the nature of communications irrevocably.
Indeed, during a House of Lords Communications Committee evidence session which was held this year to explore the issue of social media prosecutions, the situation was likened to “when a cruise liner all of a sudden needs to become a troop-carrying ship” in a time of war.
There is also a concern that there are too many overlaps in the current system, creating confusion about what legislation is the most appropriate to use and, perhaps most importantly, which will lead to a fairer trial and a harsher sentence if found guilty. John Cooper QC, the defence barrister in the Twitter joke trial, told the same Committee that in some cases there is a problem of legislation “coming at us from all angles”. This system of overlapping and intertwined legislation has led to confusion amongst all interested parties: the public, police and prosecutors and clearly that cannot continue.
These grey areas appear to have allowed for the current situation to materialise, where the police and prosecutors decide on what is or is not acceptable speech. The revamp of the legislation will help define these areas, ensuring that effective action can be taken where real harm may be caused, whilst not casting the net wider for any communications that could merely be deemed to be offensive.
Secondly, the Justice Secretary should focus his attention on the Crown Prosecution Service (CPS) and the police. In an attempt to deal with the problem of disproportionate arrests of people posting offensive comments online, the CPS published guidelines in 2013 in order to clarify the procedure. However, cases such as the prosecution of Jordan Barrack highlight that individuals are still being sanctioned for what could be deemed to be very minor offences. At the time of the guidance’s publication, Big Brother Watch warned that this alone would not be enough to rectify the situation and that real reform was necessary. Yet, despite this, nothing has been done to update the legislation.
The victims of serious abuse online, or indeed offline, do not need headline grabbing policies. What they do need is definitive action to ensure that the police know what the law states when a complaint is made and that they take complaints of illegal behaviour seriously. They should, however, be able to clearly draw the line between complaints of alleged illegal behaviour, and someone who has taken offence to a perfectly legal statement. This action will keep members of the public safe, rather than another attempt to blur the line between illegal behaviour and being generally offensive.