January 01 2015
Related ServicesComputing and Digital Evidence
There have been many high profile cases involving information posted on social networks in recent years. The abuse of Olympian Tom Daley, messages regarding missing schoolgirl April Jones, and the naming of Lord McAlpine in relation to false child abuse allegations have all been in the news, along with “joke” bomb threats and the sending of abusive messages to members of the public (“trolling”).
How social media is used presents a challenge to really understand the significance of such evidence in the context of the case. Furthermore social media services such as Facebook for example, are themselves continuously evolving and hence so must the analyses. The skills of KBC’s forensic specialists in this area can help you not only to interpret the information, but also to formulate an appropriate strategy for approaching the evidence in your case.
So what kind of messages/postings do we commonly see being the subject of prosecutions?
A threat of violence made on social media can fall under a number of Acts, including the Offences Against the Person Act 1861, the Protection from Harassment Act 1997, the Malicious Communications Act 1988, or the Communications Act 2003. The significant point is that CPS guidelines state “threats which are not credible should not be prosecuted, unless they form part of a campaign of harassment specifically targeting an individual”. This was the critical issue in the case of Chambers v DPP  EWH2 2157. Mr Chambers was convicted of an offence under the Communications Act 2003 after posting to Twitter “C**p! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!”. His conviction was successfully overturned when it was accepted by the Court that his bomb threat against the airport had been a “poor joke in bad taste”.
Communications targeting specific individuals
The Protection from Harassment Act 1997 can cover social media messages being sent which may constitute harassment or stalking. An important consideration in this regard is that the Act states that a "course of conduct" must involve conduct on at least two occasions. This means a single message is unlikely to fall under this legislation, unless it was in combination with other behaviour.
Breach of Court Orders
It has become common for subjects of anonymity orders to be named on social networks. As I am sure you are all too well aware, this is a complex area of law. Anonymity provided under the Children and Young Persons Act 1933 only applies to newspapers and television broadcasts, for example (as demonstrated in MXB v East Sussex Hospitals NHS Trust  EWHC 3279). The Sexual Offences (Amendment) Act 1992, however, prohibits publication of details that identify a victim of rape or other serious sexual offence, including via social media. In 2012, a number of people were convicted of breaching this prohibition following the naming of a woman raped by the footballer Ched Evans. They all claimed they had been unaware that naming her was a criminal offence, but awareness has been increasing due to cases such as these.
Communications which are grossly offensive, indecent, obscene or false
Messages may fall under the Malicious Communications Act 1988 or the Communications Act 2003, if they are grossly offensive, indecent, obscene, menacing or false. CPS guidelines state there should be a “high threshold” for prosecutions of this nature. Freedom of speech under Article 10 of the European Convention on Human Rights may be an important consideration, as this also covers the right to voice offensive opinions.
A message has to be more than simply offensive to be contrary to the criminal law—they must be grossly offensive. In the case of DPP v Collins  UKHL 40 stated:
“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”
Where can Keith Borer Consultants help?
There are several ways in which KBC can help when your client faces charges such as these. The issue may simply be one of context – was the message an isolated incident? Are there other messages in the conversation to give context to a “threat”, showing it is not credible? Was the message targeted at the victim, or was the intended audience much smaller?
Alternatively, it could be an issue of who sent the message. Has a fraudulent duplicate account been set up in your client’s name, or could someone else have used his account at the time the message was sent? The suicide of a young girl, Hannah Smith, in 2013 highlighted how things may not always be as they initially appear. It was reported Ms Smith took her own life after being targeted by online bullies. An investigation demonstrated however, that the alleged abusive messages originated from her own IP address; that she had posted the messages herself using fake accounts.
You will find our previous article Facebook Defences also worth a look as it details the different approaches that can be taken in relation to social media evidence.
If you have any questions regarding Facebook, or digital evidence in general, our Digital department would be happy to discuss this with you.
BSc (Hons), CFCE