The Justice Secretary, Chris Grayling, has announced that an amendment (S.29) has been added to the Criminal Justice and Courts Bill, making a malicious communication an offence which can be tried either: summarily in a Magistrates Court with a maximum sentence of 12 months imprisonment and/or a fine; or on indictment in a Crown Court with a maximum sentence of 2 years imprisonment and/or a fine.
The change would increase the maximum punishment for the offence set out in the Malicious Communications Act 1988, from 6 months to 2 years imprisonment.
The change follows a high profile example of such abuse directed at Chloe Madeley, a TV presenter in the UK, who defended comments made on national television by her mother, Judy Finnigan, regarding the rape committed by footballer Ched Evans, arguing that he should not have his career ended because the rape was “non-violent” and did not cause “bodily harm”.
The abuse, including threats of rape, thereafter directed at Chloe Madeley on social networking sites such as Twitter, has brought the issue to the forefront of the national consciousness and has prompted a response from the Justice Secretary.
An examination of the offence, as set out in S.1 of the Malicious Communications Act 1988, demonstrates that it may no longer be fit for purpose. The legislation defines ‘the offence of sending letters ect. with intent to cause distress or anxiety’, as the following:
(1) Any person who sends to another person--
(a) a letter, electronic communication or article of any description which conveys--
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
(2) A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows--
(a) that the threat was used to reinforce a demand made by him on reasonable grounds; and
(b) that he believed, and had reasonable grounds for believing, that the use of the threat was a proper means of reinforcing the demand.
Although the legislation covers electronic communications, it was not developed with the, then inconceivable, scope of social media sites, such as Twitter and Facebook in mind, which enable free instantaneous communications between their users. The unparalleled access that the public now has through the medium of social networking, to express their opinions directly to those who encounter the media spotlight, leaves those who fall foul of public opinion open to horrific and almost entirely unregulated abuse.
The problem goes far beyond the circus of celebrity, and the ever increasing instances of cyber-bullying are perhaps more troubling, provided the relentless nature with which bullying can take place remotely over the internet.
Before continuing I wish to offer a rebuttal to those who would suggest that cyber-bullying is easy to circumvent by simply not using the sites through which the bullying is taking place. First, it is the victim’s right to use social media and the malicious actions of another should not take primacy over the freedom of the victim to use the sites in a non-malicious way.
In furtherance of this point, I would argue that those who suggest victims can avoid harassment by no longer using the sites where it occurs, do not afford sufficient weight to the cultural significance of such sites in modern democratic societies, nor do they appreciate the importance such sites have on one’s ability to promote oneself for personal or professional purposes.
Social networks have become a major mechanism for self-expression, maintenance of friendships, general communication, and free advertising for celebrities and campaigns alike. To deprive an individual the experience of and ability to use social media because they are being maliciously targeted by another is tantamount, in tangible circumstances, to blaming the victim for the crime because it could not have occurred if the victim did not exist.
The offence requires proof that the sender’s intent was to cause distress or anxiety to the recipient, notice that the recipient is not required to feel any actual distress or anxiety. As highlighted by Claire Hardaker, an academic from Lancaster University who studies online aggression, the difficulty lies in proving the intent of the sender.
I will caveat what follows with an admission that I am not familiar with Claire Hardaker’s work, and it may have been the case that she used an oversimplification as an example for the purposes of the media. However I do take issue with her overall assumption that one cannot tell whether the phrase “I’m going to kill you” is meant maliciously or in jest. Below is her quote in full:
“It's like your mum sending you a text saying 'I'm going to kill you' because maybe you forgot to bring something that she asked you to bring, versus somebody on the internet saying 'I'm going to kill you',”.
This is true if the words were sent in a contextual vacuum, if for example I wrote the same phrase on a piece of paper and asked you to tell me the intention of the person who uttered them with no information beyond the words themselves.
However, malicious communications do not generally take place in a contextual vacuum. The police should be able to determine the difference between words sent in jest and those sent with malicious intent, from the relationship between the parties, what was said before and after, and whether the recipient has been affected to such an extent that they have felt the need to report it to the police.
Although this is an issue which is fraught with practical difficulties, I do not believe an overzealous approach which polices social media to such an extent as to inhibit the free speech of innocent users, would be beneficial. The main objective must be to train the police in the identification of genuine threats or harassment, it being irrelevant whether the perpetrators have the means to carry out any threat.
The law was not designed for the social media age, but I believe it remains an appropriately worded piece of legislation which can be reinterpreted along with the changing nature of communication, if one accepts the wording of the offence as such to capture all manner of malicious communications, with those instances considered worthy of prosecution identified from the multitude of technical offences under the Act.
The broad definition of the offence has a practical purpose, but may need to be restricted in future to prevent the criminalisation of socially acceptable levels of anger and aggression.
Take for example, an argument between a couple conducted via text message. One sends the other a grossly offensive message, or a threat. The sender clearly, at the time the message was sent, in the heat of the argument, intended to cause the recipient to feel distress, and therefore have technically committed the same offence under the Malicious Communications Act 1988 as those who abused Chloe Madeley using social networking sites.
Will a tougher sentence reduce the instances of this crime? I doubt it but considering the seriousness of some of the threats made, and the pain which can be caused by harassment of this kind, it sends out a message that some forms of the offence are serious and that they will be treated as such.
I would suggest that the best way in which to reduce the number of malicious communication offences, committed over the internet, is to dispel the perception of anonymity which makes the perpetrators feel secure. It is doubtful that they would behave in such a way if they were to address the victim in person, and I am sure that they feel secure from prosecution due to the anonymity offered them by the internet. The police however, have the technology to identify the perpetrators, to unveil them, and once this false shield is torn down, people may think twice before sending malicious communications.