Policing social media versus free speech

By Niall McCracken

THE number of people convicted annually of crimes involving social media and other forms of public electronic communications in Northern Ireland has trebled since 2009, The Detail can reveal today.

We can also confirm that the Public Prosecution Service (PPS) is currently drafting interim guidelines for dealing with cases involving social media. It is understood that these will be issued for consultation “in the not too distant future”.

Figures have been released to us by the NI Court Service in response to a Freedom of Information request. These show that in 2009 29 people in Northern Ireland were found guilty of at least one offence under section 127 of the 2003 Communications Act. In 2012 there were 110 convictions. The 2012 figures are provisional.

Fergal McGoldrick, of Belfast based media law solicitors McKinty and Wright, has cautioned that prosecutions under the current Communications Act will “undoubtedly bring freedom of expression concerns, under the European Convention on Human Rights, into play.”

He warned: “There is a thin line between policing social media and policing free speech.”

Additional figures released to The Detail by the PSNI also show that since late 2009 Facebook or Twitter have been mentioned in almost 5,000 incident investigations.

The detailed data we have received outlines that either Facebook or Twitter have been mentioned in the investigation of a number of offences including anti-social behaviour (ASB), assault and sexual indecency.

The PSNI stress that the number relates to reported incidents, rather than the number of individual crimes, and signifies that Facebook and/or Twitter were used by PSNI officers as part of the incident investigation.

SOCIAL MEDIA AND THE COURTS

With the PPS’s draft document on the matter pending, authorities here continue to refer to the interim guidelines on social media prosecutions provided by the Crown Prosecution Service in England and Wales when appropriate.

Part of this document outlines the use of Section 127 of the Communications Act 2003. Under this act it is an offence to send through a “public electronic communications network” a message or other matters that are “grossly offensive" or of an “indecent, obscene or menacing character.”

The guidelines state that every day many millions of communications are sent via social media, therefore the application of the Communications Act 2003 has the potential for a “chilling effect on free speech and prosecutors should exercise considerable caution before bringing charges.”

The Northern Ireland Court Service say that it is not possible to identify exactly which offences under the Communications Act 2003 relate specifically to social media only.

However figures we obtained under FOI from the Court Service show that there have been over 230 people found guilty of at least one offence under Section 127 of the Communications Act 2003 since 2009.

The figures show that convictions have continued to increase year on year. Over a third of the convictions were in the 18-29 age group, while 70% of convictions were male.

Mr McGoldrick says that as Section 127 of the Communications Act was enacted prior to the massive increase in the use of social media media there is every possibility that it is and will be used again in matters legislators are unlikely to have intended or considered its use in.

He said: “People post a variety of thoughts, opinions, jokes and statements on social media every day. Some of it is likely to be offensive to others. But does society really require government to decide and define what opinions, thoughts and jokes are deemed acceptable?

“This dilemma has existed for many years in relation to hate speech on subjects such as race, sexuality and religion. The dawn of the social media age has simply ushered in new considerations in this on-going battle.

“What has changed is the accessibility of publishing. Everyone with a smartphone is now a publisher. Consequently, the old rules seem inherently unfit for purpose, particularly if the police are to be tasked with investigating opinions, thoughts and jokes which the government views as grossly offensive.

“Police and the prosecution service need to be aware of this and not engage in spurious prosecutions or prosecutions motivated simply because there is a public outcry following postings which sections of the public find distasteful.”

Section 127 (1) of the Communications Act 2003 states that a person is guilty if the material is grossly offensive or of an indecent, obscene or menacing character

Mr McGoldrick points out that prosecutions under this act will almost inevitably invoke Article 10 of the European Convention of Human Rights governing freedom of expression.

He said: “The problem is how you define what material can be deemed grossly offensive, and more importantly, who defines it? It is at this point that the line between enforcing the law and policing free speech becomes very blurred indeed.

“What may be needed is a redrafting of the laws to take account of the fact that people, for want of a better phrase, are going to pour their hearts out on social media.

“The population at large is unlikely to appreciate or take heed of the intricacies of publication and potential circulation. They are expressing their collective opinions in a medium unrestricted by physical, legal and political boundaries.

“What matters therefore, is the intent behind the communication and perhaps that is what the legislators, prosecutors and police should focus on.”

Earlier this year the Public Prosecution Service said that the issue of whether Northern Ireland needed a policy document on the use of social media was under consideration.

However in a statement to The Detail a spokesperson for the PPS said: “The PPS is currently drafting interim guidelines for dealing with cases involving social media. It is understood that these will be issued for consultation in the not too distant future."

POLICE AND SOCIAL MEDIA

In response to a Freedom of Information request the PSNI said it did not record figures on actual crimes committed via social media.

However, the police were able to provide us with figures on the number of incidents where Facebook or Twitter were mentioned in the incident investigation logs. When this occurs it means social media was used by PSNI officers as part of the incident investigation.

The number relates to reported incidents, rather than the number of individual crimes, and does not necessarily mean that a crime has occurred.

The ability to search PSNI investigation logs electronically only came into effect in October 2009. Therefore statistics were only available from this date onwards.

The data shows that social media has been used by the PSNI in almost 5,000 (4,948) separate incident investigations up until February 2013.

Initial figures for 2013 show Facebook and Twitter have been used in almost 500 incident investigations during the first two months of this year already.

The 20 most common incident types in which the PSNI investigation included social media are listed below.

17% of cases where social media formed part of the PSNI’s investigations were incidents of alleged anti-social behaviour.

Other offences included in incident investigations with Facebook or Twitter mentioned include 300 incidents of alleged sexual indecency and over 100 incident investigations into domestic abuse.

Mr McGoldrick said the figures show how police here are harnessing the power of social media in their work.

He said: “It would appear that not all PSNI social media activity can be put down to the police observing other people’s social networks.

“The figures also appear to reveal that whilst the policing of what is said and posted on social media constitutes the single biggest element of PSNI activity on social media, the PSNI are also using it in other ways.

“To garner information and intelligence on crimes committed without a social media element, such as robbery and theft, and as an information service for the community at large using it assist them in matters such as missing persons and reports of suspicious activity.”

The PSNI declined our request to put someone forward for an interview on this matter. However in a statement it said that when a report is made to the PSNI regarding information posted on social media sites, officers will investigate and, where a criminal offence has occurred, appropriate action will be taken.

A spokesperson said: “It is important to state that certain comments which individuals post on social media platforms such as Facebook and Twitter may be distasteful, grossly offensive or hurtful, but this does not necessarily mean that they are unlawful.

“Unfortunately, it would be impossible to collate the number of crimes resulting from social networking sites. Crimes are defined by the nature of crime and not whether they occur on a social media site or not.”

Mr McGoldrick believes a number of questions remain over how the PSNI are using social media here.

He said: “The most obvious question would be how the PSNI search social media. Do they monitor certain individuals, focus on certain keywords or browse social media on the lookout for potentially criminal activity? Furthermore are the police storing the data collected and if so, are they doing so in accordance with their specific exemption allowed in Data Protection legislation?”

The PSNI stressed that Facebook and Twitter are not a mechanism for reporting crimes. It asked if members of the public wanted to report a crime they should contact their local police station on 0845 600 8000 or in an emergency telephone 999.