New CPS guidelines target online harassment

We were provisionally pleased to note this week that the Crown Prosecution Service has introduced its new “Guidelines on prosecuting cases involving communications sent via social media”. The guidelines, which in many respects are very similar to the current guidelines for prosecuting harassment cases, nevertheless offer advice that’s specific to the internet, and potentially more relevant to those who’ve suffered from online abuse.

For example, doxxing—providing personal information such as a person’s address, phone number, email address, place of business, and so on—can now be identified as a criminal act. In the context of the Hampstead SRA hoax, this could apply to those families, teachers, and clergy whose personal details were published online originally by Ella Draper and Sabine McNeill.

We were particularly interested in this section, which seems to describe a very familiar scenario:

Category 4: Communications which are Grossly Offensive, Indecent, Obscene or False

Some indecent or obscene communications may more appropriately be prosecuted under other legislation, which may contain more severe penalties, rather than as a communications offence. For instance, in R v GS [2012] EWCA Crim 398, the defendant was charged with publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959, relating to an explicit internet relay chat or conversation with one other person, concerning fantasy incestuous, sadistic paedophile sex acts on young and very young children.

However, we can see pitfalls as well:

Section 1 of the Malicious Communications Act 1988 prohibits the sending of an electronic communication which is indecent, grossly offensive, or which is false, or which the sender believes to be false if, the purpose or one of the purposes of the sender is to cause distress or anxiety to the recipient. [emphasis ours]

And later on…

Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a “public electronic communications network” a message or other matter that is “grossly offensive” or of an “indecent or obscene character”. The same section also provides that it is an offence to send or cause to be sent a false message “for the purpose of causing annoyance, inconvenience or needless anxiety to another”. The defendant must either intend the message to be grossly offensive, indecent or obscene or at least be aware that it was so. This can be inferred from the terms of the message or from the defendant’s knowledge of the likely recipient (DPP v Collins [2006] UKHL 40). The offence is committed by sending the message. There is no requirement that any person sees the message or be offended by it.

While this approach might work for run-of-the-mill trolling, in which a person hurls electronic abuse at a perceived opponent, it runs up against the same issue that the prosecution encountered during Sabine McNeill and Neelu Berry’s trial last summer: to obtain a conviction of witness intimidation, the prosecutor needed to prove that the defendants intended to cause intimidation.

In his ruling, Judge Worsley stated that this criterion was not met: in fact, while the witnesses most certainly experienced intimidation, it was as a by-product of what the defendants considered a ‘campaign’. The fact that the defendants were “delusional, obsessive, irrational, and odd” meant that their actions were viewed not as a deliberate attempt to intimidate, but as an attempt to campaign against what they believed was a baby-murdering, child-raping, cannibalistic cult.

However, there may be glimmers of hope here, as well: the new guidelines seem to reflect a public appetite for better policing of the internet. And situations such as Hoaxtead, in which a campaign was mounted to specifically harass, stalk, and defame a group of people, seem to be more common; thus, they beg a sensible and proportionate legal response:

Those who encourage others to commit a communications offence may be charged with encouraging an offence under the Serious Crime Act 2007: for instance, encouragement to tweet or re-tweet (“RT”) a grossly offensive message; or the creation of a derogatory hashtag; or making available personal information (doxing / doxxing), so that individuals can more easily be targeted by others. Such encouragement may sometimes lead to a campaign of harassment or “virtual mobbing” or “dog-piling”, whereby a number of individuals use social media or messaging to disparage another person, usually because they are opposed to that person’s opinions.

There does seem to be more room in the new guidelines to proceed with charges based on the principles of harm to the victims—such as the fear and victimisation experienced by those falsely accused of belonging to a murdering, paedophilic, cannibalistic cult.

Speaking to BBC Radio 4’s Today programme, Director of Public Prosecutions Alison Saunders said: “The internet’s not an anonymous place where people can post without any consequences. People should think about their own conduct.

“If you are grossly abusive to people, if you are bullying or harassing people online, then we will prosecute in the same way as if you did it offline.”

Given the recent spate of arrests over the past few weeks, we hope this firmer approach will at least give members of the Hoaxtead mob cause for pause.