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A Tweet Too Far

Fri, Jun 16, 2017

 mobile phone

Like it or not, social media touches almost everyone’s life these days.  While it has undoubted benefits, there is also a darker side.  Most recently there has been worrying reports of death threats being sent to a farmer via social media following a sheep incident in which a dog was shot.

So what can be done?  If social media activity is, in itself, criminal, the fact that social media was used as a tool to facilitate the offence is really irrelevant and the offence can be prosecuted accordingly.  There are other cases where prosecutions can be brought simply as a result of the post itself.  Section 127 of the Communications Act 2003 has been used in both Scotland and England and Wales to successfully prosecute individuals for social media posts which the Act deems to be criminal, though often common law offences, such as “uttering of threats”, “conspiracy”, and “incitement” might also apply.  

The Crown Office and Procurator Fiscal Service have issued guidance, which points out that there is a balance inherent in the right to freedom of expression (as enshrined in Article 10 of the European Convention of Human Rights) and what is not acceptable.  There is a high threshold to be reached for prosecution - satirical comments, offensive humour or provocative statements will not generally reach that threshold. 

Equally, there is a strong presumption in favour of prosecution where an individual, or group of individuals are specifically targeted, and the content is considered to be hate crime, domestic abuse, stalking, harassment, or contains threats of violence or damage to property, or incites public disorder.  Importantly, clicking “like”, “share” or re-tweeting a post is treated in the same way as making the original post.

If you are subject to posts which are threatening, the best thing to do is to take screen shots of them, and report them to the police.  On the other side of the coin, take a moment before posting, liking or sharing something that might land you in trouble.  As the Lord Advocate, the head of the prosecution service in Scotland, put it “if you wouldn’t say it to someone’s face on the street, don’t say it on social media”.  

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