Today, the House of Lords Communications Committee released its Report on Social media and criminal offences following a short inquiry on 1 and 9 July 2014. The Committee found that there is no need to adopt new legislation to criminalise revenge porn, trolling, virtual mobbing or cyberbullying but recommended identity checks prior to the opening of social media accounts. ARTICLE 19 welcomes the Committee’s findings as a step in the right direction but warns against a crackdown on anonymity.
ARTICLE 19 welcomes the report which endorses many of our recommendations and views, in particular:
- No need for new social media offences: the House of Lords Committee found that the legislation currently in place, including the range of offences available under the Protection from Harassment Act 1997, provides sufficient protection to victims of bullying, trolling and other social media offences.
- Freedom of expression must be protected: the Committee made it clear that what is not an offence off-line should not be an offence online. The Director of Public Prosecutions’ (DPP) guidance on social media prosecutions rightly set a high threshold for prosecution in order to protect freedom of expression.
- Victims should look to civil remedies for redress: the Committee noted that victims can avail themselves of existing private remedies, for example under data protection legislation.
ARTICLE 19 welcomes these findings, which largely reflect what we have advocated throughout the discussions on possible changes to the UK legislation in this area. In particular, we highlighted in our oral evidence before the Communications Committee that civil remedies, rather than criminal prosecution, should be used in the majority of revenge porn cases as a more appropriate way of dealing with what is ultimately the fallout of failed relationships.
We are also pleased that the Committee invited the Director of Public Prosecutions (DPP) to develop guidance on the circumstances in which indecent communications may be prosecuted under section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. In our view, this is a sensible step forward before hastily enacting any new legislation on revenge porn.
At the same time, we are concerned about the following issues that are in breach of international freedom of expression standards:
- The Committee did not go as far as advising that ‘grossly offensive’ speech should be decriminalised. We recall that international standards on freedom of expression clearly say that communication that is merely offensive is not a legitimate basis for restricting freedom of expression. As we pointed in our oral evidence, the ‘grossly offensive’ test under section 127 of the Communications Act and section 1 of the Malicious Communications Act 1988 is too broad and does not comply with requirements of legal certainty.
- The Committee’s recommendation that website operators should be required to establish the identity of online users opening an account with them are equally concerning. As Twitter pointed out in its oral evidence before the Committee, anonymity is vital for human rights defenders, journalists and activists who operate in difficult areas where dissent is violently repressed. We believe that existing legislation and mechanisms available on social media sites already strike an adequate balance between anonymity and the protection of victims. We would therefore urge the greatest caution against a knee-jerk response to anonymity online.