Your online habits could land you in prison

The internet has given rise to new crimes – from hacking and bank fraud to eBay scams – but it’s also created a new kind of troublemaker: the accidental criminal.

No-one would be surprised by an early-morning knock on the door if they’d hacked an online banking site, but the reach of the web means it’s never been easier for otherwise well-behaved citizens to break the law inadvertently.

Neither the law nor common sense have kept pace with a world in which social networks and file-sharing sites changed the legal landscape. More importantly, people who previously had no means of libelling a celebrity or breaching contempt of court rules can now do so simply by hitting Retweet. We’re all a click away from accusations of harassment or causing gross offence.

Laws are applied with a varying degree of severity, which further clouds the issue of just what will or won’t land you with a spell at Her Majesty’s pleasure. Even if you think you’re no law-breaker, there’s a good chance that even our most honest reader has broken some sort of law online, whether by ripping a CD or using a song or photo without permission, even if it’s by mistake.

Social services

Nowhere is it easier to break the law than on Twitter or Facebook, partly because people who are untrained in libel laws are now publishers, and subject to the same controls as newspaper editors – who are (theoretically) trained in media law.

Twitter is so short and instant, so much about the heat and the heart of the debate, that it’s a temptation for people to tweet too quickly without considering the consequences

Often, we see Facebook and Twitter as extensions of a pub discussion, where banter and alcohol-enhanced opinions are routine but ephemeral. Online, however, our comments stick around and spread quickly, potentially reaching a wider audience than intended – sparking a “Twitter storm”.

“Twitter is so short and instant, so much about the heat and the heart of the debate, that it’s a temptation for people to tweet too quickly without considering the consequences. There could be contempt of court, defamation or data-protection issues,” said Kathryn Wynn, a senior associate with tech law firm Pinsent Masons. “We’ve seen real-world examples of this… people can’t substantiate a tweet as they don’t have any evidence. In the heat of the debate, people don’t go away and check, because the debate would have moved on – so they don’t stop to think.”

It’s because of incidents like this that a social network user could find themselves facing court. Several trolls have served time, and libellous posters have had to dig deep to pay damages.

Despite the grave consequences, the authorities are still coming to terms with how to deal with Joe Bloggs gaining a platform to air opinion and humour. Look at the farcical trial of Paul Chambers, who was found guilty of sending a menacing message when he jokingly threatened to blow up Robin Hood Airport near Doncaster after it was closed due to snow, though later acquitted on appeal – common sense and law don’t always mix.

Since that case, Crown Prosecution Service (CPS) guidelines have laid out where prosecution for harassment or web threats is justified, focusing on whether threats are credible, how persistent the harassment is, and the level of offensiveness.

In its guidelines on when to prosecute, the CPS says most Twitter rant cases shouldn’t go to court, even if the post involves “the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour; even if distasteful to some or painful to those subjected to it”.

However, the CPS also says it would “robustly prosecute” posts that “amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders, and those communications which may be considered grossly offensive”.

The court ruled that the actions of Isabella Sorley and John Nimmo fell into the “grossly offensive” category when they threatened campaigner Caroline Criado-Perez over her part in calls to put Jane Austen on £10 banknotes.

Their tweeted assertions that “I will find you” made the harassment more credible and unnerving, and the judge accepted that the persistent campaign had a “life-changing impact”. The pair were sentenced to jail for their trolling, yet plenty of cases don’t make it to court.

That level of subjectivity over whether an offence has been committed at all – where one person’s gross offence is another’s sick humour – can make the law look silly

The difficulty in sifting the acceptable from the illegal is that the fine line between “grossly offensive” and merely offensive is subjective.

While the troll who posted a homophobic tweet about diver Tom Daley hasn’t been charged, the student who made vile remarks about footballer Fabrice Muamba after he collapsed during a game (“LOL. F*** Muamba he’s dead !!! #Haha”) was sentenced to two months in jail.

As much as the law, public opinion seems to dictate whether an ill-thought-out post could see you in the dock, but it’s hard to predict what will outrage social networks.

“Prosecutorial discretion has a big role to play. The CPS requires action to be in the public interest, and that can be subjective, as is what’s ‘grossly offensive’,” says Adam Rendle, an associate with law firm Taylor Wessing. “That level of subjectivity over whether an offence has been committed at all – where one person’s gross offence is another’s sick humour – can make the law look silly.”

Criminal action can also be taken over posts that could incite violence or hate crimes, with the riots of 2011 providing plenty of overtime for police, as they followed up on posts that suggested where rioters should meet to take part in disturbances.

Perry Sutcliffe-Keenan and Jordan Blackshaw, for example, were sentenced to four years under the Serious Crimes Act after both created Facebook events attempting to arrange meeting points for riots. No-one except the police turned up, but the judge still wanted to set an example.

Contempt of court

Court reporters are taught on their first day in the job not to break court orders or name sex-offence victims, but on Twitter there’s no instruction into the nuances of contempt of court.

In 2012, nine people were fined for tweeting the name of the victim in a rape case that found footballer Ched Evans guilty. The nine people, who pleaded guilty, all said they didn’t know that naming sexual-assault victims was prohibited, but – as with other offences – ignorance is no defence.

Given the instructions provided to a jury, it’s unlikely that juror Joanne Fraill could claim ignorance when she also faced contempt-of-court charges after contacting the defendant in a multimillion-pound drug case via Facebook.

“Her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial,” the judge said in his ruling.

The trial collapsed as a result of her actions, and the High Court judge expressed his anger by handing out an eight-month prison sentence.

Defamation

While threats, harassment and incitement are criminal matters, social media is also a rich seam of income for lawyers specialising in defamation. Sally Bercow’s expensive run-in with Lord McAlpine – in which a judge ruled that the wife of the House of Commons speaker had falsely accused McAlpine of paedophilia – is perhaps the highest-profile example, but anyone can face ruinous costs for libelling online.

In February, Alistair Dempster was hit with a £9,000 libel damages bill for his part in a campaign against an Old Etonian who had bought and taken over the village pub. Dempster and proprietor Christopher Horne fell out over the running of The Bell, and Dempster took to Facebook to air his frustration.

He rebranded the pub’s Facebook page “Toad of Bellenders – how not to run a Cotswold pub”, where Horne was repeatedly referred to as “Toad of Toad Hall”.

Things quickly got out of hand, with posters making allegations concerning Horne’s sobriety and sexual habits; highlighting how what probably started as a laugh among pub locals ballooned into something more costly in the cold light of a courtroom.

According to lawyers, it’s easy to libel someone via social networks: each post, tweet or retweet could be subject to its own legal action, although it’s often impossible to take action against everyone.

“A retweet of a false and defamatory tweet isn’t immune from legal action. Just as the tweeter is liable if the tweet is defamatory, untrue and cannot be defended, so the retweeter will be liable,” said Rendle.
Whether in a tweet or Facebook posting, or in a blog or comment responding to an article, defamation is a costly mistake, with £200,000 considered the upper limit for most damages payouts; most are significantly smaller, though.

Copyright concerns

The heyday of P2P networks and unlawful downloads may be over, but that doesn’t mean legal action for sharing or reusing copyright material is going away. The rise of YouTube, blogs and other outlets means lawyers still have plenty on their plates. However, the chances of facing legal action for copyright infringement are probably slimmer now than in the past.

Increasingly, rights-holders who find their work used elsewhere, such as a television programme uploaded to YouTube, are more likely to approach Google with a takedown notice and have the episode removed than to pursue the uploader. The same goes for music in a video that you’ve made yourself and soundtracked using a song without permission.

“The general position in a fan context is that it’s very unlikely that any action would be taken; it’s more likely that the host will receive a takedown request. The same would apply if you upload a TV show, but not if you’re uploading thousands of songs,” said Rendle.

However, copyright pirates attract demands for compensation from rights-holders, which can amount to much more than the cost of the music or film.

“Copyright holders can go behind the platform, and with The Pirate Bay and people hosting illegal material, it’s more likely that people will go to individuals through their IP address,” said Dr Dinusha Mendis, associate professor in law at Bournemouth University. “They’re looking for takedown and they’re looking for financial compensation.”

In January, musician Prince sought $22 million (around £13 million) from 22 people accused of uploading his music, showing that although the studios focus on professional pirates, fans can still feel their wrath.

Even making a copy of music you’ve already bought, or moving it to another format, could technically be asking for trouble, as UK law on the subject is due for renewal and doesn’t give consumers any digital rights.

“Making a copy for your own private use or moving it from one format to another is a problem, because current UK law is silent on those issues,” said Mendis. “The Hargreaves Review recommends these are things that should be okay. At the moment, people do it, but they’re not punished.

Other copyright works that attract attention from lawyers are photos posted on blogs and personal and business websites. The hunt for free illustrations often leads bloggers to Flickr or Google Images, where they look for pictures that are marked as free to use, often under Creative Commons licence.

However, Creative Commons doesn’t give you carte blanche to use images. There are various Creative Commons formats, and it’s complicated by photos that belong to stock-image libraries being uploaded to Flickr and incorrectly labelled as free to use.

“It’s confusing. With Creative Commons you have different levels, such as ‘non-attribution’ and ‘non-commercial’. Sometimes people label things as Creative Commons and don’t know which licence they are using,” said Mendis. “People put things on Google Images saying ‘Creative Commons’ without getting permission from the content owners. The moment they put ‘Creative Commons’ on it everyone else thinks: ‘That’s something we can all use’.”

The result can be a demand for royalties. And like libellous retweets and “grossly offensive” Facebook posts, it shows that the attitude that anything goes online can prove costly in the end.

Choose your friends

Hacking attacks against big companies tend to attract attention from the police, often with the help of the FBI. Obviously, if you go on a denial-of-service spree aimed at knocking down credit-card companies you’re asking for trouble, but simply mixing with hackers can be enough to see you dragged down to the station.

Freelance programmer Sean Roesner was awoken by police and arrested in 2012 over allegations he had breached the Computer Misuse Act, accusing him of “unauthorised computer access with intent to commit other offences”.

For eight months, the 21-year-old was on police bail until officials finally told him they were taking no action – not because there was no evidence against him, but because they were “too busy”.

Roesner has always maintained his innocence, and says he had no ties with hacking groups such as Anonymous; he believes his only mistake was to mix with the wrong sort. “The reason for being arrested according to them was because when Google+ first came out, I put on my profile the word ‘iN^SaNe’, and my religious views as ‘#antisec of course’. iN^SaNe is a hacker, part of the group ‘Team Poison’,” Roesner told PC Pro.

“They were under the impression that I was him, but I’m not. My friend James Jeffery was also arrested by the Police Central e-crime Unit for hacking into the British Pregnancy Advisory Services’ website – even though the police never admitted it, I think they read our chat logs and letters and thought that I was a hacker, too.”

The police held onto Roesner’s PC, laptop, phone, USB sticks and iPod – as well as a set of Audi A3 number-plate lights, believing they were computer hardware – and retained the cache for eight months, but failed to find anything warranting a prosecution.

“They arrested me simply because of a name on a social networking site,” said Roesner, adding that he still jumps when there’s a knock on the door. “They started asking me lots of questions about the hacking of Tony Blair and if I was involved, but I wasn’t.”