Offensive content posted on social media can be prosecuted.
Every day millions of messages are sent via social media, e.g. Facebook, Twitter, LinkedIn, YouTube, WhatsApp, Snapchat, Instagram and Pinterest, including photos, texts and videos. The free and easy way in which people can post often makes it feel outside of the law; certainly most members of the public probably do not consider that they could be committing an offence because prosecutions are rare.
Communications which are grossly offensive, indecent, obscene or false can be prosecuted and in this article we focus on the sensitive, offensive example of a case prosecuted fast after the Grenfell disaster but which could apply widely to other acts of terrorism or natural disasters.
Going forward, the social media companies themselves may be held accountable for removing offensive content. Indeed, while social media companies are largely reliant on their users to report such content for review by moderators, it is possible that these companies could bring in arrangements for proactively identifying and removing offensive and illegal content.
Omega Mwaikambo was arrested on 14 June 2017; within a day of the Grenfell fire. Two days later, he pleaded guilty in court to two charges of breaching section 127 of the Communications Act 2003 by posting offensive images to a social media network. In the early hours, as he returned home to his flat, Mwaikambo spotted a body from the Grenfell disaster: a corpse, wrapped in plastic, apparently dumped in the enclosed courtyard area outside his flat’s front door. He uploaded seven of the pictures, plus one short video, to his Facebook page. His Facebook account was set to open, meaning anyone could access the images via Facebook.
The first charge related to two photos and a video of the body bag’s exterior of a Grenfell victim. The second charge related to five photos of the body inside a body bag of a Grenfell victim. District Judge Tanweer Ikram told Mwaikambo “The whole country, if not the whole world, has been shocked by what has taken place in the last few days in relation to the fire at Grenfell Tower,” …“What you have done by uploading those photos shows absolutely no respect to this poor victim. To show his face as he lies there is beyond words.”
Judge Ikram sentenced Mwaikambo to six weeks in prison for each of the two crimes; a total of three months in prison.
It is important to note that, for public postings in social media, the thresholds for prosecution are high. However, for grossly inappropriate photos or messages, criminal prosecution may be in the public interest.
As things currently stand, television broadcast is more heavily regulated with the aim to prevent suffering and distress both of individuals and next of kin and viewers.
The above is an extract from an article written for Entertainment Law Review