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Blog: How the law can prevent racist and offensive social media posts

15 Jul 2021

After racist social media postings were sent to members of England’s national football team, Aileen Colhoun, a parner in our Serious and General Crime team, has written a blog post setting what the law can do to help.

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The universal condemnation of offensive and racist social media posts directed at some members of the England football team following its defeat in the Euro 2020 final has again shone a spotlight on the problem of online abuse.

It has been reported that Twitter has taken down up to 1,000 such postings and that the Metropolitan Police have launched a criminal investigation into them.

While the law is unlikely to be the only way to prevent this kind of abuse, it is surely an important tool to do so. It is appropriate therefore to ask what are the available criminal law sanctions to prevent this kind of behaviour?

There are a wide range of offences penalising online abuse. These include:

Section 19 of the Public Order Act 1986 This creates the offence of publishing, or distributing to the public or a section of the public, written material which is threatening, abusive or insulting if the intention is to stir up racial hatred or, having regard to all the circumstances, racial hatred is likely to be stirred up. 

Section 29C of the Public Order Act. This creates the offence of publishingor distributing written materialwhich is threatening if the intention is to stir up religious hatred or hatred on the grounds of sexual orientation. This too carries a maximum penalty of seven years’ imprisonment.

It is hard to see how anyone putting racist material  on any social media platform would not fall foul of one of these two offences. But what about abuse which is not specifically racist or intended to stir up religious hatred or hatred on the grounds of sexual orientation? This kind of abuse can be deeply upsetting and disturbing for the intended target. Here again there are potential criminal sanctions.

Section 1 of the Malicious Communications Act 1988. This makes it an offence to send to another person a letter, electronic communication or article of any description which conveys a message which is indecent or grossly offensive, or a threat, if the sender’s purpose in sending it, is that it should cause distress or anxiety to the recipient or to any other person to whom the sender intends that it, or its contents, should be communicated. Such communications are not confined to messages posted on social media. This offence carries a maximum sentence of two years’ imprisonment. 

Section 127 of the Communications Act 2003. This makes it an offence to make improper use of a public electronic communications network. This can catch communications that are grossly offensive or of an indecent, obscene, or menacing character as well as false or persistent messages sent for the purpose of causing annoyance, inconvenience, or needless anxiety to another. This carries a maximum sentence of six months’ imprisonment. 

It is worth noting that investigating and prosecuting anyone in respect of the above offences can be time consuming and expensive. It also depends, to a significant extent, on the co-operation of the social media platforms with the courts and law enforcement agencies (for example by helping identify relevant IP addresses to track down offenders).

The Government announced, in the draft Online Safety Bill, its intention that social media platforms be regulated by OFCOM. The plans envision criminal and civil sanctions for non-compliance. A duty of care would be imposed on these platforms, designed to protect users, with specific additional protection afforded to children and some adult groups. 

OFCOM will have the power to issue “use of technology” notices, requiring the use of accredited technology to identify terrorist or child sexual exploitation and abuse content, with a view to its removal, and “information notices”.

Failures to comply with a requirement of an information notice, to knowingly or recklessly provide information which is false in a material particular or to provide, in response to an information notice, material which is encrypted, will all be criminal offences carrying a maximum sentence of two years’ imprisonment on Indictment. Senior managers will also become criminally liable with similar sanctions. Civil enforcement with hefty financial sanctions is also proposed, with maximum penalties of 10% of qualifying worldwide revenue or £18 million, whichever is the greater. OFCOM will also have the power to apply for “service restriction” or “access restriction” orders. 

Tougher regulation and sanctions will of course only treat the symptoms rather than eradicate abusive behaviour. However, they are necessary tools to punish those responsible and, if effectively enforced, to deter others. 

It is likely that many young people are unaware that posting an abusive remark on a social media feed is a crime. It would be a fitting legacy of this summer of football if the message is forcefully driven home that society will not tolerate this type of shameful behaviour.  


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