I write this in the days after the horror of the Grenfell Tower fire; the fact of the disaster is known but the amount of families and friends bereaved by it is not.
Anger is boiling over that such a tragedy should occur. There is frustration at the perceived treatment of the survivors and lack of information about the extent and cause of this catastrophe. Public distress is clear on social media. There are conspiracy theories about ‘news blackouts’, forcefully held opinions and deep distrust of the authorities. Against this background some posts on social media cause concern.
As the tragedy was still unfolding a man was arrested apparently after taking pictures of a partially clothed victim of the fire and sharing it on social media. He is now serving a 12 week sentence after pleading guilty to malicious communication.
The Malicious Communications Act 1988 prohibits the sending of an electronic communication which is indecent, grossly offensive, or false, if the purpose of the sender – or one of the purposes – is to cause distress and anxiety.
This can be rather a blunt tool. Context is everything and so much is in the eye of the beholder. Causing anger and distress is a tool to underline the strength of legitimate argument – arguably a valid one. Equally, behind some posts may be an indefensible desire to shock for its own sake with disregard the consequences.
The aim is that the criminal law directs acceptable behaviour, reflecting society’s values. But it is at times of tragedy and disaster that values are most challenged. When feelings run high there is a need for prosecutors to take particular care to balance the conflicting demands of free speech with the need to protect from distress.
It must be ensured that decisions are made calmly. They must heed the warning in the Code for Crown Prosecutors of the “potential for a chilling effect on free speech and prosecutors should exercise considerable caution before bringing charges [under the Malicious Communications Act]”
It is a struggle for criminal law to regulate and guide how we use social media. As the internet swirls with anger, confusion, shock and resentment, there will be a challenge in balancing the right of people to be heard and to instinctively respond, with the rights of others not to be further distressed.