Main types of criminal offences

This step addresses the challenge of categorising online abuse within existing criminal laws.

Earlier in the course we identified different forms of online abuse. If you try to find the offence of trolling or doxxing, you may not find it easily or at all. This does not mean it is not an offence but rather there are existing criminal offences which predate these specific activities or indeed the Internet.

The Crown Prosecution Services (CPS) (2016) in the United Kingdom provide a good categorisation of communications offences in criminal law which capture the overwhelming majority of the most severe forms of the online offences we have discussed. We will now use that as a framework for discussing criminal offences in a bit more detail.

Category 1 – Credible threats of violence to persons or property.

This includes communications that pose credible threats of violence to persons or property. The criteria of credibility is very important. Such offences are often found in laws relating to offences or crimes against the person, harassment, as well as specific communications laws. For example, in England and Wales, if a fan were to threaten to kill or physically harm a football player, and their family, then section 16 of the Offences Against the Person Act, 1861, may apply.

Category 2 – Online communications or courses of conduct targeting specific individuals

This involves communications that specifically target one or more individuals, potentially constituting harassment, cyberstalking, revenge pornography, or other offences involving direct targeting of individuals. These communications are aimed at causing distress, fear, or harm to specific persons and can include repeated unwelcome contact, the sharing of private sexual images without consent, and behaviours that control or coerce. There may not necessarily be a threat of violence as in Category 1. An example of this would be cyberstalking, for example, if a professional golfer noticed an increase in unsettling encounters with a fan who not only attended every tournament but also sent frequent detailed messages about the golfer’s personal schedules and appearances, causing fear and anxiety in the golfer.

Category 3 – Breach of court orders and statutory prohibitions

This involves the breach of existing court orders or statutory prohibitions. Examples include violating restraining orders, breaching bail conditions, or engaging in activities restricted by specific laws e.g., contempt of court or revealing the identity of a victim of a sexual offence or a child offender. These offences apply in all circumstances including online media.

Category 4 – Communications which are grossly offensive, indecent, obscene or false

This category encompasses communications that, while not targeting specific individuals or posing direct threats, are grossly offensive, indecent, obscene, or false and have the potential to cause distress or anxiety. The CPS (2016) note a high threshold is required for prosecuting such cases. The content must surpass mere offensiveness or distastefulness to warrant legal action. For example, offensive language, satirical or rude comments or the expression of unpopular or unfashionable comments, banter or humour, would typically not reach a sufficient standard to proceed with a prosecution under law. Context is crucial in assessing these communications, with a focus on ensuring that the response is proportionate and considers the impact on free expression. A significant consideration in deciding to proceed with a prosecution of an offence under this category is whether there is a particular person targeted and weighing up the harm to that person. An example could be if a well known sports figure was targeted with profanity-laden tweets that disparaged their performance in a recent competition, using offensive language to belittle their efforts.

Other potential crimes related to online abuse

Two additional offences that are worth discussing are identity theft and impersonation and hacking. These are particularly prevalent in the context of impersonation, surveillance, and lockout and control attacks.

Identify theft and impersonation

There is no specific law entitled “identity theft” in the UK, however it is an offence under different acts related to fraud. When someone impersonates another or steals their identity and uses it, they are representing themselves to others as that person. In a sporting context an example of this would be if an imposter were to create a social media profile mimicking a famous cricket player, misleading fans into donating to a fake charity event supposedly supported by the player, damaging the cricketer’s reputation and defrauding fans.

In the US, section 1028 of Title 18 of the United States Code prohibits knowingly and without lawful authority using another person’s identification documents. It also prohibits knowingly transferring such information or documents to another, as well as possessing or trafficking in such materials. Penalties include a fine or imprisonment.

Hacking

In England and Wales, hacking, the unauthorised access to computer systems, is primarily covered under the Computer Misuse Act 1990. Similarly, in the US, Section 1030 of Title 18 of the United States prohibits knowingly accessing without authorisation or consent a protected computer to obtain information, including for purposes of extortion or threat to cause damage. The penalty for hacking under this provision is imprisonment and a fine. It should be noted that the law also includes provisions for more severe penalties under certain circumstances.