In recent years, given the rise in the use of social media platforms such as Twitter and Facebook, it is no surprise that the Crown Prosecution Service (CPS) has issued guidance setting out in what circumstances they would seek to prosecute individuals who create and share offensive posts online.
Despite previous guidance being issued highlighting the issues posting on social media, it would appear that public understanding remains unclear.
The new guidance coincided with Hate Crime Awareness Week which sought to tackle the ongoing issues with inappropriate posting and sharing on social media.
A recent report suggests that as many as one in four teenagers have suffered online abuse as a result of their gender, race, sexual orientation or religion to name a few.
It is an offence under the Malicious Communications Act 1988 to “send or deliver letters or other articles for the purpose of causing distress or anxiety.” This means that it is an offence to send communications that are indecent or “grossly offensive,” threatening or false. This includes messages communicated through social media.
Section 127(1) of The Communications Act states that it is an offence to make improper use of a public electronic communications network. This would include sending "a message or other matter that is grossly offensive or of an indecent, obscene or menacing character".
Section 127(2) makes it an offence to send messages "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This particular offence can apply to messages sent by email or by other forms of communication.
The new guidance seeks to assist the police by setting out in what circumstances it would be appropriate to prosecute those caught sharing what “grossly offensive” material.
The test to determine whether a post is grossly offensive is set out in DPP v Collins  1 WLR 2223. It states that if the message would cause ‘gross offence’ to the person who it relates to, this would satisfy the test.
The new guidance itself is somewhat vague providing only a few examples of what may be deemed inappropriate.
It introduces a concept of “virtual mobbing” highlighting a growing trend on social media. It means that those involved in encouraging other social media users to engage in an ‘online harassment campaign’ may fall foul of the legislation. This will include the creation of derogatory hashtags which may be deemed “grossly offensive.” Such behaviour may amount to a campaign of harassment. In such cases, virtual mobbing or more simply those who encourage others to enhance is online hate campaigns will be prosecuted through The Serious Crime Act 2007.
Another example set out in the guidance includes the distribution of personal information such as bank account details or a person’s home address, known as ‘doxxing’. Those who share such information are likely to fall foul of the legislation under the new guidance.
However, as social media posts have the ability to be shared worldwide to millions in an instant, the guidance fails to acknowledge what jurisdiction and the control the UK courts will have. For example, if other social media users across the world contribute to such activity, how far can the UK courts hold those charged accountable? This is potentially an international issue and it will only be clear once more cases are brought before the court.
The guidance does make clear that anonymity is not a defence and therefore, those who believe they are posting ‘anonymously’ if caught; will still face prosecution under the new guidance.
Those found guilty of the above offences under the new guidance could face up to six months in custody and or a fine not exceeding £5,000.
The CPS has reported that in 2015-2016, hate crime prosecutions were at an all-time high. More than four in five of those charged with offences resulted in a conviction. It will be a matter of time which will determine whether the new guidance results in more convictions against those suspected of engaging in such activity.