The Crown Prosecution Service in England and Wales last week introduced a new set of guidelines pertaining to social media use. The guidelines are tipped to be incorporated into legislation and offer pause for thought for countries everywhere that seek to better understand and better regulate social media.
Criminal offences used to be defined and their legislation developed to pertain to, and work within, the engineered nation state borders. This nation state construct, in the words of the social scientist Benedict Anderson, has been premised on an imagining. According to Mr Anderson, countries are essentially “imagined communities” where any citizen will, in all likelihood, only interact with an absolute minority of his fellow citizens. That citizen will have a sense of belonging to a commonly inhabited space and culture in common with every person sharing his nationality. That commonality is created by shared symbols such as the flag, the national anthem and cultural symbolisms. Social media has enabled this understanding of the “imagined community” and its “borders” to be subverted. With social media, one can now potentially make contact with anyone on our planet who has an internet connection.
This virtual “de-bordered” world has brought with it its own menaces and warnings which call for new sets of legislation to be formulated. A robust regulatory framework is urgently needed.
There have been innumerable cases of the most egregious and pernicious behaviour in the world of social media use. The perpetrators are, in many countries, promised an environment to spit their venom and then go scot free. Englishman Kevin Healy, a passionate campaigner on autism issues, quit social media in 2015, as a result of a severe case of cyber bullying.
A Survey in the UK of 13-18 year olds commissioned to mark Safer Internet Day revealed that 24 per cent of respondents reported they had been virtual targets on the basis of their race, religion, sexual orientation and gender. More than four in 10 of youngsters interviewed were of the opinion that “online hate” had become more prevalent.
The new guidelines categorise insult, intimidation, hate, derogatory hashtags, revenge pornography and bullying in the virtual world within the ambit of criminal offences.
Allison Saunders, the director of public prosecutions in England and Wales, said: “If you are grossly abusive to people, if you are bullying or harassing people online, then we will prosecute in the same way as if you did it offline.”
Ms Saunders’s words carry promise but they come with limitations. Offensive will be condoned but grossly offensive punished. There is often a thin and subjective line here between what is offensive and what is grossly offensive. Specific detail is needed here so the verdict is not reliant on subjective interpretations.
We simply don't have the tools for successful virtual investigations. We need to formulate a new set of forensics to apprehend virtual culprits. Without this, enforcement will continue to be problematic.
As in Mr Healy’s case, despite his complaints to the police and to Twitter, the perpetrators remain anonymous and at large. Also, the geographical specificity of the guidelines is problematic.
If a person in England is trolled by someone in India, how can the English guidelines be enforced? How you bring to account cross-border criminality is the key question.
The positive news about the new framework is that it stresses the decoupling of hate speech from free speech – and this was long overdue.
The need for guidelines then is global and their case for countries such as India most pressing. All countries must legislate and perpetually legislate to secure the online world from one that is seeing an inexorable descent into elements of barbarism and savagery.
Priya Virmani is a commentator on politics and economics
