Social media and harassment

15 February 2021

Not reviewed after the date of publication

Question:

A victim has been subjected to having his Facebook profile image posted on a YouTube video. As a consequence they have been in receipt of a number of messages from different profile accounts that have caused distress.

We are aware of who has posted the video, however the victim's distress has not necessarily been caused by them but by the other messages. Please can you assist with the appropriate legislation and offences?

Answer:

Whether the following offences are met will depend upon the exact circumstances, the intention of the person and the considered impact on the victim.

In light of the information provided we have considered the following legislation:

Public Order Act 1986

Although the Public Order Act 1986 was almost entirely enacted before the invention of social media, parts of it may still be appropriate for offences committed using social media.

Section 4A of the Public Order Act (D404 on PNLD) states that a person is guilty of an offence if with intent to cause a person harassment, alarm or distress, he –

a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

This offence refers to a single instance so each person who has messaged the victim and the person who posted the video could be charged with the offence although this may not be possible if messages are received by persons unknown. If however a course of conduct has been shown by a person, then it may be necessary to prosecute under the Protection from Harassment Act 1997 (below). 

Protection from Harassment Act 1997

Section 2 (D43119 on PNLD) outlines the offence of harassment as a person who pursues a course of conduct in breach of subsection 1(1) or 1(1A).

'1(1) A person must not pursue a course of conduct –

(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.'

As outlined in section 1(2) (D2791 on PNLD) of the Act the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another, if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.

The following further offences could also be considered:

Section 1 of the Malicious Communications Act 1988 –offence of sending indecent, offensive, threatening or false information

Section 127 of the Communications Act 2003 – offence of improper use of public electronic communications by sending a communication grossly offence, indecent, obscene or menacing in character to be sent. Or causing annoyance, needless anxiety to someone by sending a false communication.

Whether these offences apply would again completely depend on the circumstances, the exact words/language used in the communications and impact to the victim and or others.

A link to relevant CPS guidance can be accessed below and will also assist with social media offences:

https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media

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