Social media hate crime is covered in English and Welsh law under three existing legislative Acts. These include the Communications Act 2003, the Malicious Communications Act 1988 and the Protection from Harassment Act 1997. To prosecute an alleged perpetrator CPS (Crime Prosecution Service) needs to provide enough evidence to ensure intent to the crime as well as prove it is in the public interest the alleged perpetrator should be sentenced.
There are four categories of offences;
1) Communications constitute as a threat of violence to person or property.
2) Communications constitute as harassment or stalking, control, coercive behaviour or blackmail (including revenge porn).
3) Contempt of Court Act, Sexual Offences Act or and Breach of restraining order or bail.
4) Grossly offensive, indecent, obscene or false.
It is worth mentioning here that the use of incorrect legislation by CPS could result in an insufficient sentence. An example of this would be the case R v GS (2012). In this case the defendant published explicit internet chat discussing fantasy of incestuous, sadistic, paedophilic sex acts upon young and significantly young children. Had CPS used another legislation to prosecute the defendant, a harsher sentence would likelier have been given. It is worth questioning by that standard, how and why CPS can get it so wrong?
So, let’s look at the interpretation of “grossly offensive” and “indecent or obscene character”. Gross indecency is interpreted in the Oxford Dictionary of Law as a sexual act considered more than ordinary. Indecency is interpreted as conduct that the average person would find shocking or revolting. A judge may politically lean to the left in their interpretation of the meaning, but the population (therefore the average person) as we see in the current political climate, a small majority lean more to a right/alt-right political leaning. The judge should therefore take the average person’s leaning above his own.
This is very important to take into consideration when reviewing a sentence as a sentence could be argued if it is incorrectly assumed how the average person perceives the definition of shocking. If more people are convinced to come to the alt-right, then surely judicial precedent will also have to change?
Another concern is that the defendant must be proven to either intend the message to be grossly offensive, indecent or obscene or be aware of it. So now you have a less sensationalised understanding which the newspapers insist on, I would like to turn your attention on to the flaws of concentrating on social media hate crime and then finally my thoughts on the Count Dankula case.
A case was brought against a police force for arresting a rape victim for supposedly reporting false allegations. The victim had not lied and was found to be telling the truth. The victim prosecuted the police force under Article 3 of the ECHR (European Convention of Human Rights) for degradation. This case interests me because clearly the victim would have been traumatised therefore dealing with the mental health condition Post Traumatic Stress Disorder (PTSD) and will have likely brought a claim under Article 14-discrimination, alongside it.
The definition of disability under the Disability Discrimination Act 1995 states
-if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.
Article 3 prohibits inhuman or degrading treatment or punishment. No exceptions and no limits. Article 14 discrimination must be used in conjunction of another right, for example discrimination with degrading treatment whereby no reasonable adjustment is made for mental health so inflicting anxiety on the defendant.
With mental health issues ever increasing in men and children, I believe many more cases could be brought against the police for degradation and discrimination by those suffering with mental health issues. The reason being that those who make the complaints have no idea if the person posting the perceived offensive post could be suffering with a mental health condition. The arrest itself could be a breaking point for some people who may have posted something in a fit of rage, trauma, depression etc. If this does happen and I believe it will, the floodgates will open and with our police forces already financially stretched and our courts overly backlogged due to no legal aid and therefore self-representation, this will likely have a hugely negative affect on our authorities.
Lastly, with this knowledge I would like to address the current case regarding a YouTube personality known as Count Dankula. He had trained his dog to Nazi salute as a joke to irritate his girlfriend as she praised their dg to be sweet and cute. He chose to train it to do the most vulgar thing he could think of and posted it to the internet. While I don’t condone what he did, I would like to focus on my thoughts on whether I believe he will be sentenced for this act.
Intent can be proven on this case, so it is a matter of whether it is in the public’s interest that he is sentenced. I am unsure of his criminal history if any, but supposing he does have a criminal history it is far likelier he will get sentenced. If not, that leaves us to question if it is in the public interest. The ‘average person’ is noticeably thinking differently in this new age of populism. That means the judge would have to bare this in mind. It isn’t about pleasing minority voters (although I suspect from other cases this does come into sentencing) but about the average person’s thoughts on what constitutes ‘shocking’.
With the new change to society in their tolerance and political thinking, I don’t believe a judge can presume in this case that it is in the public’s interest to sentence this man. If he does get sentenced without previous criminal convictions, I expect to see civil unrest and uproar.
I’m interested in your thoughts on this case, whether you see the political and societal change that I do and if you think sentencing this man if he is free of previous convictions would create unrest within society or perhaps put society back in its place and be a warning to those who step out of line? Also, what are your thoughts on discrimination cases being brought against the police or government with social media hate crime?