Regulation and Investigation of Crime on Social Media
Info: 13353 words (53 pages) Dissertation
Published: 1st Mar 2022
Tagged: Social Media
The Potential and Limits of Linking Users’ Registrations to their National Identity Numbers for the Regulation and Investigation of Crime on Social Media in the United Kingdom
The increasing role of social media in the day-to-day life in the UK makes social networking platforms an attractive space for criminals. Social media is capable of perpetuating existing crime by increasing its scale and scope and decreasing its cost, but it is also a breeding ground for fundamentally new types of crime. The proliferation of crime on social media has led to calls to tighten the grip of the law around the sector. At the same time, adverse regulation in the UK has proved counterproductive and produced uneven results. The purpose of this project is to explore the potential and limits of the proposal to link users’ social media registrations to their national identity number, as a means to address the challenges for traditional criminal law in tackling crime on social media. The proposal is implemented in different countries around the world – on social media platforms in China and South Korea, and in various countries around the globe in the context of mandatory registration of mobile SIM cards. The main argument of the project is that although the measure has the potential to address the difficulties of attribution of crime to social media, it is difficult to enforce in practice and is likely to lead to more problems than it resolves.
Key words: social media, crime, criminal law, regulation, investigation, Internet regulation, surveillance
Social media is a recent invention which allows individuals to express themselves and interact using the Internet. The two major social media, Facebook and Twitter, were founded in 2004 and 2006 respectively. Today, Facebook has roughly 38 million users in the UK and Twitter – 17 million. In addition the well-known providers, there are different social media platforms around the globe with different focus of activity, but all with the same purpose of enabling people to interact with one another using the Internet – social networking. However, although social media is generally beneficial in fostering freedom of expression online, they have also become a new breeding ground for criminal activity – from terrorism to cyber bullying, revenge pornography, virtual mobbing, sexual grooming, etc.
The early cases in which the difficulties in regulating social media became apparent were in relation to contempt of court. In 2008, a juror posted the details of a child abduction and sexual assault case on Facebook by adding “I don’t know which way to go, so I’m holding a poll”. She did not use any privacy settings on her profile, so the message was easily discovered and the Crown Court hearing the case was informed, as a result of which the juror was dismissed. Similarly in Davey, two jurors were found guilty of contempt of court – one of them because he posted on Facebook the sentence: “Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to F*ck up a paedophile & now I’m within the law!” The increased occurrence of criminal cases involving social media inevitably leads to calls for more regulation and moderation of the criminal justice system.
At the same time, adverse regulation of cybercrime has proved counterproductive and produced uneven results. For example, the UK has the most draconian laws on child pornography – s. 63 Criminal Justice and Immigration Act 2008 criminalises the possession of extreme pornography which portrays acts that threaten one’s life, bestiality, necrophilia, etc. The year the act entered into force, a bus driver from Wrexham was charged with possession of extreme pornography because a friend of his sent him a prank video of a woman having sex with a man in a tiger costume, which was thought to be bestiality. Eventually the charges were dropped, but the driver’s life was ruined because he was refused contact with his young daughter and suffered a heart attack as a result of the trial. The law as it stands now effectively criminalises the works of art of the Goth community which depict death, vampirism, etc. and even some horror films, depicting threats to one’s lives.
Therefore, on the one hand the new challenges call for new regulatory responses. On the other hand, these regulatory responses need to be balanced against numerous other factors, so that the law produces adequate results.
2. Research Question
The main research question which this dissertation is to address is: ‘To what extent linking users’ registration to their national identity number or equivalent identifiers is a feasible solution to the problems of regulating and investigating crime and violence on social media?’
The question raises a number of subsidiary questions:
(1) To what extent social media creates new opportunities for violent crime?
(2) What are the challenges in regulation and investigation of crime on social media?
(3) What are the advantages of linking users’ social media registrations with their national ID number?
(4) Are these advantages likely to resolve the challenges of regulation and investigation of crime on social media?
These questions will be addressed through the prism of the UK. The UK is a suitable example for assessing the impact of such a proposal. The reasons for this are as follows: (1) It does not have extreme freedom of expression laws like the US, which makes the introduction of such a measure practically possible. (2) It is practicable to examine the introduction of a requirement within one jurisdiction, rather than globally, as it is not possible for different states with different social values to agree to universal implementation. (3) It is a familiar jurisdiction to the author, allowing him/her to take into account various societal and legal factors, such as the influence of the European Court of Human Rights and the Court of Justice of the European Union.
The question is relevant and in fact, on the current UK agenda because of the increasing role of social media in the daily life of the country and the fact that a solution to crime on social media has not been found, so practical contributions such as this one contribute to the pool of ideas of how to conceptualise the problem and how to alleviate it. As a fairly recent phenomenon, social media is vastly under-researched, so there is a pressing need to fill this research gap, especially as far as the practical aspects of law are concerned. Last but not least, the project will demonstrate how academic legal research can be used to address real-life problems.
The main thesis of the project is that linking users’ social media registrations to their national identity number will create more problems than it will resolve in the UK. The project will be divided into three chapters each addressing one or two of the subsidiary research questions.
Chapter I will deal with defining the problems with regulation and investigation of crime on social media. It will focus on the new opportunities for individual criminals and criminal groups that social media creates, the conceptualisation of crime on social media. The chapter will conclude by outlining the major regulatory challenges.
Chapter II will first discuss the current UK approach to regulation and investigation of crime on social media, the idea behind it and its drawbacks. The chapter will then proceed to presenting the proposal of linking users’ social media registrations to their national identity number by referring to systems where a similar measure is already in operation – namely, the mandatory requirements for registration of prepaid SIM cards in some countries and the operation of the measure on the Sina Weibo social network in China. The chapter will move on to assessing the potential of applying the measure within the UK.
Chapter III will be centred on the limitations of linking users’ social media registrations to their national ID numbers. The chapter will address the practical difficulties of introducing and enforcing the measure in the UK, its implications on data security, data privacy and freedom of expression.
Due to the massive research gap on social media, the traditional methods of qualitative legal research – close reading, desk research and analysis of primary legislation, case law and academic resources, will be combined with analysis of non-academic sources. This will be done with the vision of keeping the project up-to-date and filling the gaps of academic research, where necessary. For the same purposes, the project will adopt a multi-disciplinary approach by drawing arguments areas other than law, such as criminology, psychology, sociology, politics and International Relations.
CHAPTER I: The Problem with Regulating and Investigating Crime and Violence on Social Media
Before turning to the possible solutions to the problem of regulating crime and violence on social media, it is important to define the problem itself and the challenges for regulation. This chapter will address this task. Its first part will focus on the ways in which social media create new opportunities for committing crime. The second part of the chapter will conceptualise crime on social media as symbolic violence whose centre point is speech and expression. Despite these similarities, there are, however, differences between different types of crimes on social media, which puts to doubt the idea that the solution to all of them could be a one-size-fits-all one. The final part of the chapter will be dedicated to the challenges in regulation and prosecution of crime on social media, whose understanding is vital in the discussion of the possible solutions.
1. Social Media – Ample Opportunities for Violent Crime
The proliferation of violence on social media follows the maxim ‘Crime follows opportunity’. Social media-related crime was a minor issue in 2008 – four years after the launch of Facebook, but between 2008 and 2012 the reports of such crime grew 7 times. Social media presents ample opportunities for criminals to commit crime.
1.1 Numerous Victims
Social media offers to criminals practically an indefinitely large pool of potential victims and data they can target. Nowadays, people spend an increasing amount of time on social media websites. According to data from Statista, the average time per day that users spend on social networking platforms is 118 minutes. The global social media population is more than 2 billion people. With this amount of potential victims, it is hardly surprising that social media is attractive to criminals.
1.2 Ease of Collecting Information
With users posting and sharing practically everything on social media, it is easy for criminals to collect data about a particular victim. This became apparent in the case with Kim Kardashian’s jewellery robbery in Paris. Kardashian is one of the social media stars – days before the robbery she shared a picture of herself wearing a massive diamond ring. She was also constantly posting what she was doing and her whereabouts during the Paris fashion show she was participating in. This made her an easy target for the robbers.
1.3 Collaboration between Criminals
The ease of communication and its instant nature facilitate the communication between criminals and the criminals and the victims, making organised crime and group crime easier and less costly. Criminals can group themselves together around the need to commit ephemeral acts and pool their skills and knowledge. For instance, pedophile groups enable pedophiles not only to communicate easier, but to show off and compare themselves with others, which increases their incentives to commit crimes. Terrorist organisations using tactical violence to achieve their political goals use social media for recruitment, propaganda, fund raising, sharing strategies for attacks and data mining, e.g. ISIS is operating multiple Twitter accounts, which allow it to rapidly disseminate propaganda.
1.4 Empowering of Individual Offenders
While facilitating organised crime, at the same time social media empowers individual offender – the so-called ‘empowered single agents’ who can carry out complex and far-reaching offences which can be repeated infinite number of times – previously beyond their financial and organisational capabilities.
1.5 New Crimes
Social media can facilitate new crimes such as revenge porn – the uploading of explicit images, which were obtained consensually by one of the partners in a relationship after the relationship has broken down for the purposes of humiliation of the victim in front of their friends, colleagues and employers. At the same time, social media websites provides new methods of committing already existing crimes such as abuse, harassment and issuing threats.
Social media presents an opportunity for ‘performance’ crimes – the ability of criminals to create accounts of the crime through text, images or video, which are then distributed to the public via social media platforms. Thus, social media has added new type of crime to the traditional forms where criminals prefer to hide their identity and actions.
In short, social media increases the speed of crime, the distance that it is capable of reaching, its volume and reduces its cost.
2. Conceptualising Crime and Violence on Social Media
2.1 Symbolic Violence on Social Media
Violence promoted by social media is objective, as opposed to subjective. Subjective violence such as robbery or terrorism is the most perceivable one, while objective violence such as the one on social media is to do with symbolic violence and discourse – it is violence that happens primarily through language. Social media has perpetuated symbolic violence. Although users might think that they know who they talk to on social media, in reality they speak to a computer screen. Much of the audience on social media is invisible and thus, it is not possible to predict to what extent something said could be interpreted as offensive in another context and prompt violent reaction. This is the so-called ‘context collapse’.
2.2 Crime and Violence on Social Media as a Speech Act
Crime and violence on social media includes various speech acts such as trolling – intentional disruption of a forum or discussion by causing offence and starting an argument; cyber bullying – bullying through the use of social media or other electronic means; revenge porn and virtual mobbing – use of social media by a group of people to message or to make comments to or about an individual, whose position they are opposed to. Furthermore, most offences that can be committed using words or other forms of expression such as images, can be committed through social media, e.g. harassment, threatening violence to a person. Other Internet offences, such as sexual grooming, are committed via the use of speech, i.e. child abusers use social media websites to contact children in order to obtain false sense of trust, child sex abusers use speech to lure children into disclosing personal information, encourage them to send indecent pictures, blackmail them into sending even more revealing pictures and persuade children to meet them in flesh.
2.3 Classification of Social Media Crimes
The crimes and violence on social media can thus be classified in the following manner:
|Types of Crime on Social Media||Examples|
|1. Social media-assisted crimes
Traditional crime using social media
|2. Social media-enabled crimes
New opportunities for traditional crime
|• General hate speech
• Child abuse
• Sex trafficking
|3. Social media-dependent crimes
New opportunities for new types of crime
|• Cyber sex
• Cyber pimping
• Online grooming
• Targeted hate speech
• Revenge pornography
Social media-assisted crimes are those whereby if the social media is removed, they will still be committed through alternative means, despite the fact that their number will be reduced. Social media provides entirely new opportunities for social media-enabled crimes. These crimes are regulated through existing criminal law, however, had it not been for social media, their number will be significantly reduced. The third category of social media crimes are those dependent on the social networking platforms – these are crimes that are either not within the scope of the criminal justice system, or the criminal justice system was not intended to tackle them. Despite the centrality of speech in all crime on social media, the differences mean that they need to be addressed in different ways, i.e. while social media-assisted crimes can be addressed through existing criminal law, this is not necessarily the case with social media-enabled crimes and social media-dependent crimes, whose social media element requires a different response.
2.4 Regulation of Social Media Crime and Freedom of Expression
The centrality of speech in crime on social media is a challenge for regulation as freedom of expression is a personal freedom under Art. 10(1) European Convention on Human Rights (ECHR). Therefore, interference with the freedom of speech has to be justified on serious grounds according to the requirements of Art. 10(2) ECHR. Any regulation of crime on social media has to strike a balance between protection of freedom of expression and prevention of crime. Sometimes, this is incredibly difficult as the line between crime and offence is extremely fine. While it is clear that the conduct of a person who uses social media to abuse children is criminal, the situation is less clear in relation to offensive comments. Social media are an arena of clashes of taste. For example, celebrity deaths often lead to different reactions from social media users – from sadness to annoyance at the attention that they receive. The question for the regulators is then whether comments or memes that mock the pronouncements of grief in an offensive manner should be criminalised.
3. Challenges to Regulation and Prosecution of Crime and Violence on Social Media
The first fundamental issue regarding the regulation of crime and violence on social media is jurisdictional – the cross-border nature of the Internet makes the prosecution of criminals who target domestic victims difficult, if not impossible. The English courts have tackled the problem by assuming jurisdiction if a substantial measure of the activities constituting the crime has taken place in England – this is the so-called ‘substantial measures’ test. Even so, if the culprit is entirely based outside of the territory of the UK and there is not a connecting factor between them and the UK, there is very little that the UK can do to curtail their activity. Deciding whether the criminal activity took place within the UK or has substantially taken place in the UK is not a straightforward question as the manipulation of location is easy on the Internet. Furthermore, if the activity in question is legal in the country of origin but illegal in the country of destination, the country of destination has very limited ability to influence the foreign perpetrator. For instance, if the offence is to do with content, the state could place an obligation on Internet Service Providers (ISPs) to filter the content, or oblige the foreign providers to create country-specific websites which abide by the local laws. However, the state cannot actually reach or charge the offender. This is due to the fact that traditionally all three types of jurisdiction – legislative, adjudicative and enforcement jurisdiction have been based upon the concept of territoriality. Therefore, the legislature cannot target foreign criminals through legislation, the judiciary does not have jurisdiction over such cases and the enforcement agencies cannot enforce the law against them.
3.2 Cost of Investigation and Prosecution
Secondly, the cost of investigation and prosecution of cyber crime is immense – it requires huge financial, technical and human resources. Cyber crime overall is under-investigated. One of the reasons for this is the under-reporting of cyber crime and the lack of knowledge about it on behalf of the public – in 2014 there were 2.46 million cyber incidents in the UK and only 16,349 cyber-dependent incidents reported. Public knowledge about crime on social media is distorted by a series of signal events – shocking events that shape public opinion like the recent NHS hack and serve as examples of what could happen. This distracts the public from what is actually happening and what the current tendencies in crime on social media are. Another reason is that cyber crime is perceived as individually small in impact and thus, not worthy of expenditure from the finite police resources. Moreover, cyber crime and crime and violence on social media fall outside of the traditional police activities and the police have little experience in dealing with it.
While social media can be useful in investigating crime, it is exactly this effect that it has that puts an additional strength on the finite police resources as it enables the discovery of evidence of minor crimes which were previously invisible. This creates the temptation to investigate the offences which are the easiest target, distracts the police from investigating serious crime and violence on social media and results in innocent people being wrongly accused of crimes. Social media also provides readily available information about individuals that amateur detectives (the so-called ‘couch detectives’ – civilians who contribute to evidence gathering) can use to conduct sleuthing and then forward the details to the police. These digital sleuths, though technically savvy, are not familiar with the procedures of investigating crimes, which results in confusion, misinformation and false accusations.
The role of the police in policing cyber crime is more limited than in traditional crime. ISPs through their terms and conditions also have the power to dictate the rules on the Internet and social media – on the one hand, these are the access providers and on the other hand – the content providers.
3.3 Limited Impact of Law
Law is only one of the few factors that shape behaviour – thus, it only has a limited influence on outcomes in social media. Other factors are social norms, the market and architecture (code).
Lawis an order to behave in certain way under a threat of punishment – this is the so-called first-order enforcement. However, law can also regulate through second order enforcement by empowering certain groups in society, so that they can use ridicule to enforce the law, thus imposing informal sanctions on the wrongdoers. There is also third-order enforcement when individuals internalise legal rules and avoid committing a crime due to the prospect of guilt.
Social normsregulate behaviour by defining what is permissible within a given society through many slight and often forceful sanctions that members of a society impose on each other. Similar to law, norms regulate by threatening punishment, but the punishment is not institutionalised or centralised. If a user publishes child pornography content on social media, they will be reported to the social networking platform by numerous users.
In practice, however, norms on social media are difficult to implement as the social media community consists of people from different countries and different backgrounds. While there is a broad agreement that certain acts such as child pornography on social media are wrong, there is not such an agreement about other areas. For instance, in China the use of social media as a tool for human flesh search engines – virtual mobbing on people who have allegedly did something wrong in order to make their life a misery is not objected, while in the UK it will be considered online stalking and harassment. Thus, social norms in social media are very few and with limited impact on behaviour.
Market regulates through setting prices and determining the supply and demand of a service. Its influence is largely eliminated in the context of social media as it is free to use and available at all times.
Architecture (code) regulates through setting the characteristics of a given society that make it what it is. An example of regulation through architecture in the real world is Napoleon III’s decision to broaden the streets of Paris in order to avoid the disruption in the city at times of mass protests. In the social media context, an example of regulation through code is the collection of cookies and provision of personalised content and targeted advertising. The potential of regulation of social media through code is huge. The threat is that this might turn the social networking platforms into social engineering platforms.
Overall, the factors that are likely to influence behaviour on social media are law and code or the combination of both. The danger of reducing law to software (code) which results in automated policing, applying rules without envisaging the prospect of discretion, is immense. When code is used to replace discretion, individuals are judged upon what they could do, rather than what they did. This creates a sense of insecurity and public animosity when new regulation through code is introduced. An example of this is the Investigatory Powers Act 2016. S. 87 allows for obtaining and retaining data, such as Internet connection records, in order to identify the websites that somebody has visited and the search terms they have used. Part 6 of Act provides for bulk interception warrants and bulk acquisition of personal data. The intercepted material can be used by a number of institutions including the HMRC. The HMRC recently introduced a supercomputer so that it can take advantage of its new powers. With it, it can access information from emails, bank accounts, website registrations and match it with information submitted by taxpayers in their self-assessment declarations. The impact of this is unknown, but most likely, it will lead to a number of false accusations or false assumptions on behalf of the HMRC and more public outrage. This is an example of regulation through law, which has subsequently turned into regulation through code, which has negative impacts on people’s lives.
3.4 The Problem of Non-Attribution of Crime on Social Media
The issue of attribution refers to assigning responsibility for committing an attack. Generally speaking, criminals have a strong incentive to avoid identification because this is the first step to them being charged, tried, convicted and sanctioned for their wrongdoing. Criminals do not usually prefer to identify themselves.
Anonymity is a central concept to the Internet. There is no consistent approach on anonymity by social media websites, e.g. Facebook has a real-name policy, but there is nothing stopping the users from registering a fake account, Twitter allows anonymity while Google+ has abandoned its real-name policy. Twitter emphasises that anonymity is valuable for dissidents, whistleblowers and journalists reporting from conflict areas. At the same time though, anonymity facilitates crimes such as cyber bullying – the Irish case of Erin Gallagher in which a teenager committed suicide as she could not cope with the bullying she received through her ask.fm webiste which promoted anonymity, demonstrates its negative impact. Defamation Act 2013, though not in the context of criminal law, incentivises social media platforms to have a procedure that enables them to identify their users. A social media platform can rely on the defence is s. 5(2) Defamation Act – showing that it was not the website operator who published the defamatory material. The defence fails if the claimant shows that it was not possible to identify the actual publisher, the claimant gave the operator a notice of complaint and the operator did not respond to it in accordance with the Defamation (Operators of Websites) Regulations 2013.
Anonymity is, however, only one of the problems of indentifying the perpetrators of crime on social media. The approach to identifying the perpetrator of a crime in the physical world is to find evidence at the scene of the crime which lead to a particular individual and locate witnesses who can identify the criminal. The assumption of the police officers is that the culprit is still in the geographical area and thus, they look for sightings of the perpetrator and individuals who know him. If attribution fails, the officers still assume that the criminal is in the local area and are on the alert that they might re-offend.
In cyber crimes generally, location is an ambiguous concept. Criminals are capable of controlling the computers of innocent parties, located anywhere in the world, without their knowledge and make them look as the perpetrators. If the computers through which crime is committed are dispersed in different countries, the law enforcement agencies will have to obtain assistance from the governments in the states in whose territory computers were used. Obtaining assistance usually takes time. It is also possible that the country from which assistance is required does not consider the act under investigation criminal, in which case no assistance will be obtained. The culprits can also make their location look as if it is changing by controlling different individual computers every time, which additionally confuses the investigators.
Due to the distance differential between the attacker and the victim in cybercrime, the point of origin of the attack and its point of occurrence are not as closely related as in the physical world, where the point of occurrence is either the same or very close to the point of origin. Finding the point of occurrence of cybercrime gives little clue of the origin of the attack, thus eroding the ability of law enforcement to assume that the attacker is parochial.
Crimes on social media, especially personal attacks, often have a connection with the physical world. This creates confusion as to what the point of origin of the crime is. For example, if Jane stalks her former boyfriend or employer, using Facebook, the motives of her act are to be found in events that occurred in the physical world. The point of origin of the attack is then both in the physical world and online. On the one hand, to identify the attacker, the police can rely on the physical contacts of the victim just as in crime in the physical world. On the other hand, Facebook in the case of Jane is also a point of the attack as she persistently uses it for stalking. Even if she might not have revealed her identity to Facebook, its use can provide inferential data as to her identity. This is the easier option for the investigation authorities.
However, when the victim and the perpetrator are not in the same physical space, the crime scene is fractures into pieces – the first one is the actual point of origin, the second one are the intermediaries used to make the crime look as originating from a particular place and the third one – the point of occurrence. Often this results in false assumptions that the intermediary point is the actual point of origin.
Social media create a number of new opportunities for crime and ways of committing crimes by providing a practically indefinite pool of victims, enabling criminals to collect readily available information about them and facilitating the communication between criminals around the world. Crime in social media is not constrained by distance and volume. Culprits can commit crimes at an increased speed and at a lower cost. Social media have perpetuated symbolic violence, i.e. violence through discourse. While all crime on social media is a speech act, the differences between the various types of crime on social media render a different response. Regulating crime and violence on social media is inherently problematic because of the jurisdictional constraints of law and the problem with non-attribution of violent acts. It is also difficult because of the under-reporting of this type of crime, the financial and human resources needed for investigating it, the propensity to investigate the easy targets, the limited role of the police and its general inexperience and neglect of crime on social media and the implications of regulation on freedom of expression. Finally, the law only has a limited impact on behaviour – this is also the case in social media, where architecture or code also plays a vital role in regulating behaviour. Any regulatory response will have to take into account and appropriately address these challenges. Therefore, when discussing regulatory responses, this will be done in the context of the challenges.
CHAPTER II: Possible Solutions to the Problem of Regulating
Crime on Social Media – The Case for Linking Users’ Social Media Registrations to their National Identity Number
After discussing the problems with regulating, policing and investigating crime and violence on social media, the project will now deal with the issue of responses to the challenges. The purpose of this chapter is to assess the effectiveness of the current UK approach to regulating crime on social media and present the alternative of linking users’ social media registrations with their national identity number. Firstly, the current UK approach will be assessed by examining its theoretical foundations and how it has been implemented in the context of social media. Secondly, the chapter will present the proposal of introducing the measure of linking users’ registration to their ID by referring to two examples of cases in which a similar requirement has been put in practice – the mandatory registration of prepaid SIM cards in some states and the Sina Weibo social media in China. Finally, the chapter will discuss the potential of the measure to address the challenges of regulation and investigation of crime on social media in the UK.
1. The Current UK Approach
1.1 Defining the Current UK Approach
The current UK approach is best summarised in the House of Lords Select Committee on Communications report on social media and criminal offences: ‘what is not an offence off-line should not be an offence online.’ According to the conclusions of the report, the existing UK legislation is capable of dealing with task of regulating crime on social media. The substantive side of this approach is set out in the Crown Prosecution’s Service October 2016 guidelines on prosecution of crimes involving communications transmitted through social media. The guidelines divide the offences on social media in four categories – (1) communications which constitute threat to violence or damage to property; (2) communications that specifically target individuals (harassment, stalking, controlling behaviour, revenge pornography, etc.); (3) communications which amount to a breach of a court order or a statutory prohibition (juror misconduct, contempt of court, breach of restraining order, etc.) and (4) grossly offensive, indecent, obscene or false communications. It sets out the existing primary legislation, tackling crime on social media and the principles when applying it – there is high threshold at the evidential stage, the context of social media where communication is instantaneous, casual, often ill thought out and with unintended consequences, the public interest in prosecution of crime on social media and Art. 10 ECHR on freedom of expression.
Summary of the Current UK Approach in Respect to Crime on Social Media:
|Criminal Activity on Social Media||Relevant existing provisions under which the criminal activity is dealt with|
|Breach of court orders||Contempt of Court Act 1981|
|Breach of court orders (e.g. naming of a person)||s. 5 Sexual Offences (Amendment Act) 1992|
|Cyberbullying (involving threat to kill)||s. 16 Offences against the Person Act 1861|
|Cyberbullying (involving fear of violence)||s. 4 Protection from Harassment Act 1997|
|Cyberbullying (involving harassment)||s. 2 Protection from Harassment Act 1997|
|Cyberbullying (involving stalking)||s. 2A Protection from Harassment Act 1997|
|Disclosure of private sexual image without consent (revenge pornography)||s. 127 Communications Act 2003
s. 1 Malicious Communications Act 1988
|Stalking (involving fear of violence, serious alarm and distress)||s. 4A Protection from Harassment Act 1997|
|Threats||s. 1 Malicious Communications Act 1988|
|Virtual mobbing||s. 127 Communications Act 2003|
|Racial or religious aggravation||s. 28 Crime and Disorder Act 1998|
|Disability or sexual orientation aggravation||s. 146 Criminal Justice Act 2003|
1.2 Conceptualising the Current UK Approach
The current UK approach is based on the principle of online-offline equivalence – the presumption that there should be equivalence of treatment between online and offline activities and online and offline law respectively. The principle can be divided into equivalence of application (the obligations imposed by the legal norm should be equivalent) and equivalence of outcome of the law (the effect of applying a norm should be equivalent). While equivalence of application can easily be achieved, equivalence of outcome is not at all guaranteed in respect to Internet law. Examples of such divergence of outcomes are the application of copyright law to the online environment which is based on the principle of copying, regulation of search engines which cannot be equated to that of telecoms, access providers or broadcasters.
1.3. How does it Work in the Context of Social Media
Social networking platforms converge audio-visual and print media with communication platforms, thus making the implementation of the online-offline equivalence principle problematic. Crime on social media differs from crime in the physical world. For example, cyberbullying differs from bullying in a number of ways. In the majority of cases, the victims do not know their perpetrators – roughly in about 31 per cent of cases victims know their perpetrator. This has important implications for the victims as it reinforces the perpetrators’ sense that they can act without fear of punishment and makes them commit crimes that they would not otherwise commit in real life. While the victim of traditional bullying can physically escape the torments of the bully, cyberbullying victims are deprived of this option as most people use technology on a regular basis, so the victim can be tormented at any time and any place without having any safe place to retreat to. There is scientific research showing that some forms of cyberbullying cause more harm than traditional bullying, especially cyberbullying involving circulation of videos and images as once such content is released on social media, its reach grows exponentially and it is difficult to restrict it, causing permanent humiliation of the victim.
Given these substantive differences, it is hard to see how the principle of online-offline equivalence can lead to adequate regulation of cyberbullying on social media. Firstly, in terms of equivalence of application, as there is inherent difficulty in identifying the perpetrators of cybercrimes, and thus, criminals feel that they can act with impunity, it is not possible to apply the law online in the same manner as in the physical world. Secondly, as far as equivalence of outcome is concerned, as the harm caused by cyberbullying is sometimes greater than the harm caused by traditional bullying, applying the same law does not produce the same result in terms of delivering justice to the victims. Cyberbullying is only an example of a social media-assisted crime. The situation of inadequacy of the current legislation is even worse in respect to social-media enabled and social-media dependent crimes. For example, there are no readily available legislative means of prevent the release of disturbing live videos on Facebook – a criminal practice that became commonplace after the release of the ‘Facebook live’ feature in 2016.
All of this demonstrates that contrary to the claim made by the House of Lords report that the existing UK legislation is capable of dealing with crime on social media, this is not the case, and either serious adjustment to the existing framework is needed, or fundamentally new legislation that deals specifically with the issue of cybercrime should be enacted. A requirement to link social media user registrations with the users’ national identity number is a proposal in light of these problems.
2. The Proposal of Linking Users’ Social Media Registrations with their National Identity Number
This idea originates from the policy in some states to oblige mobile operators to require proof of identity from users when they sign up for a pre-paid SIM card. This requirement is justified on grounds of facilitating law enforcement agencies in apprehending criminals and terrorists, thus leading to reduction in crime, terrorism and anti-social behaviour. It was applied in practice in the context of Internet services in China where in 2011 the government introduced a law requiring users of many online services to register with their names and provide their national ID number. This has been put in practice by the biggest Chinese social networking platform – Sina Weibo. How this proposal has worked in practice will be discussed below.
2.1 Mandatory Registration of Prepaid SIM Cards
The rationale that different states use for introducing such a policy differ, but the most common one is curbing criminal activity. Other reasons include curbing widespread theft of mobile phones. Such is the case in Latin America where the mobile phone identification number (IMEI number) is registered against a particular SIM to facilitate investigation of theft. In other countries, the primary concern is to ensure that there is adequate age verification process. According to the conclusions of the GSM Association’s 2016 report on the subject, the decision of states whether to adopt such a policy is directly linked to the availability of national identity documents that can be matched against an official government registry. For example, the UK has no formal verifiable ID system. The repealed Identity Cards Act 2006 contained a provision for establishing a national identity register, which was to be a reliable record of registerable facts about individuals in the UK. The lack of a national identity register and uniform proof of ID is thus related to the lack of a requirement for mandatory registration of pre-paid SIMs. In cases where there is no verifiable national registry and proof of ID is requested upon registration, often the physical presenting of the documents and the physical presence of the consumer are required before their registration can be processed.
The mandatory registration of pre-paid SIMs suffers from a number of drawbacks. There is a possibility for fraudulent registration of SIMs by criminals, who have stolen ID details of individuals. The measure also opens up the possibility for emergence of black markets for fraudulently registered or stolen SIM cards, which can potentially become another problem on the plate of the law enforcement agencies. Furthermore, the SIM or the handset can be physically given to another person or stolen, so there is not way to ensure that the person who has committed a crime is the person under whose name a phone number is registered. Finally, a SIM registration requirement is jurisdictionally limited, so there is no way to block foreign criminals who target a particular country operating a mandatory registration requirement by using a phone in a country which does not have such a requirement. The alternative approach to SIM registration is lawful interception of communications which require phone operators to have capability in place to monitor communications in real time and allow access to the enforcement agencies when needed upon authorisation from the relevant authorities. This is the approach the UK has adopted – the latest development in this regard was the Interception of Communications Act 2016. In respect to cybercrime, the UK’s approach is consistent with the requirements of Art. 21 Council of Europe Cybercrime Convention, which empowers its signatory states to legislate and provide measures for real-time collection and interception of content data, subject to the conditions in Art. 15(1) which is that the measure is in accordance with the ECHR. There is no provision in the Cybercrime Convention requiring states to adopt linking of users’ registration to their national ID number.
2.2 Linking Users’ Registration with their National ID Number – The Sina Weibo Experience
China has a long history of attempting to introduce a real-name policy on the Internet. The first attempts to do so were not effective as it was not possible to force users to provide their national ID number retroactively, i.e. once they have registered without it prior to the introduction of the measure. When the policy was introduced on Sina Weibo, this issue was dealt with by disabling the comments functions of old users who refuse to register their national ID number. The rationale behind the policy was to eradicate ‘bad speech’ on the Internet. The deadline for the implementation of the registration through a national ID number on Sina Weibo expired in March 2012, but the issues with implementing the policy persisted after the deadline.
The introduction of linking users’ registration with their national ID number encountered a number of problems. Firstly, there was resistance on behalf of social networking platforms such as Sina Weibo because of the immense costs of implementing the policy and ensuring that users’ data is kept secure, the administrative burden of verifying users’ registrations are genuine and the negative impact on business as it leads to withdrawal of users. Moreover, it is possible to type any Chinese ID number upon registration, so there is a big market for stolen or leaked ID numbers and no way to verify whether the registration is accurate and genuine. After China denied market access to foreign social networking platforms such as Facebook, this led to proliferation of local social media. The implementation of the policy by the largest social networking platform – Sina Weibo, led to migration of users to alternative platforms that do not run the policy and thus, break the law. The remaining users found ways to circumvent the requirement by setting their location to ‘overseas’ or through buying a SIM and using Sina Weibo through a mobile network. There is a mandatory SIM card registration requirement in China, but the sellers of mobile phones often fill in fake information. At the same time, there is little that the government can do to compel all social media websites to implement the ID registration policy. The government has interest in keeping all users on one or two platforms and then targeting these with its policy. The market in China is fragmented after the withdrawal of international social media, and therefore, users no longer use predominantly one or two platforms. The government could close the infringing platforms, but it cannot prevent setting up of new ones and fragmentation of the market.
3. The Potential of Introducing a Requirement to Link Users’ Registration to their National Identity Number in the UK
There are a number of reasons why requiring social media websites to link users’ registration to their national ID number may have positive impact on law enforcement in the UK.
3.1 Link between Criminalisation and the Ability to Identify the Perpetrators of Crimes
The House of Lords Select Committee on Communications report on the subject of social media and criminal offences rightly describes the necessity for law enforcement agencies to be able to easily identify criminals on social media – “there is little point in criminalising certain behaviour and at the same time legitimately making that same behaviour impossible to detect.” It is therefore proportionate to require website operators to establish the identity of users before they can register an account. Subsequently though, according to the select committee report, users ought to be allowed to use the social networking platform by using pseudonyms.
3.2 Security, order and less hidden interception of communications
There is some logic in this statement in light of the security threats, the spread of ubiquitous surveillance, terrorist propaganda, crime and organised crime on social media. In relation to real-name policies, a type of which is the requirement to link users’ registration with their national ID number, the Electronic Frontier Foundation (EFF) has noted that such a measure improves behaviour on social media, creates a more civil environment and has a preventive power over stalking and harassment by introducing accountability for actions on social media. Interestingly, the EFF has suggested that implementing the requirement will reduce the need for lawful interception of communication, currently carried out by a number of governments, including the UK. This is a consistent conclusion, given that as noted above, governments that do not have a general national registry and centralised identification system through a uniform identity document tend to rely on spying the Internet. The issue of increased spying is one of the big public concerns in the UK. It could be argued that if the introduction of ID registration on social media leads to less spying on behalf of the government, the social media users will be more willing to give up their personal information. This hypothesis, however, has not been tested in practice. Hardly any conclusions in this regard could be drawn from the Sina Weibo experience since government control of the Internet in China is part of everyday life and there is no such public revolt against the practice as in the case of the UK’s widespread interception of communications.
3.3 Reducing the number of accounts of under-aged persons and fake accounts
Millions of accounts on Facebook belong to children who are under the minimum age for setting up a profile on the platform – 13 years. Introducing a requirement to link users’ registration with their ID number is a way of introducing age verification at the gateway of social media websites and dealing with the problem with under-aged users. Related to this point, social media networks are plagued by a problem with a massive number of fake accounts. Requesting ID number upon registration will substantially reduce the amount of fake accounts.
3.4 Reducing the cost of and time for investigating and prosecuting crime on social media
As discussed in Chapter I, one of the challenges of policing and prosecuting crime on social media is the immense human and financial resources that this requires and the time that it takes. Having readily available means to identify the point of origin for most crimes on social media will alleviate this problem to a great extent. This will reduce the practice to rely on amateur detectives – technically savvy citizens who engage in investigating crime without being aware of the official code of practice for this activity and then forward the evidence to the police. Linking users’ registration to their national ID number will also decrease the distraction of the police with finding previously unavailable evidence for minor crime and return its focus on serious crime and violence on social media.
By introducing accountability for one’s actions, the linking of users’ registration on social networking platforms with their national ID number, has the potential for expanding the impact of law on behaviour on social media. In Chapter I it was argued that the law has limited impact on behaviour as behaviour is also influenced by the social norms, market and the architecture of the environment. There are three ways in which law influences outcomes – acting under threat of punishment (first-order enforcement), being subject to informal sanctions by the society as a result of the law (second-order enforcement) and internalisation of the law and avoidance of committing crimes due to the prospect of guilt (third-order enforcement). The measure under discussion has the potential of reinforcing the third-order enforcement as the criminals’ sense that they can act with impunity on social media as it is difficult to identify them and attribute the criminal act to them will be addressed.
The current UK approach to regulating and investigating crime and violence on social media is based on the assumption that what is not an offence online ought not to be considered an offence online. This is the so-called online-offline equivalence principle. However, there are substantive differences in terms of scale, scope and degree of harm between similar crimes in the physical world and on social media as demonstrated by the example of cyberbullying. Furthermore, there are social media-dependent crimes, which are not familiar to the criminal justice system. These factors render the current UK legislation designed to deal with traditional crime inadequate to address the specificity of crime on social media. The proposal to require from social networking platforms to request users’ national identity number upon registration is a departure from the principle of online-offline equivalence. It was first introduced in the context of mobile phones with the requirement for mandatory registration of SIM cards in some states and social networks in China. In both cases, there have been issues with enforcing the measure, mainly because users attempt to circumvent it through various means. The measure has some limited potential to alleviate the problems of regulation and investigation of crime on social media in the UK. It can facilitate the attribution of criminal acts and thus, partially curtail the activities of criminals. Furthermore, it has a real potential to decrease the cost of and time spent on investigating crime on social media and reduce the number of fake accounts and accounts belonging to under-aged minors. Arguably, it could also improve third-order enforcement of the law through self-restraint of criminals and reduce the need for hidden surveillance on behalf of the government.
 House of Lords Select Committee on Communications, ‘Social media and criminal offences’, 1st Report of Session 2014–15, HL Paper 37 (London, Stationery Office, 2014), para. 7
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 Ibid., para. 10
 Hörnle, J. ‘Countering the dangers of online pornography – Shrewd regulation of lewd content’  2(1) European Journal of Law and Technology
 Adapted from Wall, D. ‘The Internet as a Conduit for Criminal Activity’, p. 81
 Ibid., pp. 80-81
 Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Rome, 4 November 1950
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 R v Smith (Wallace Duncan) (No. 4)  EWCA Crim 631, para. 55
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 Ibid., p. 56
 Ibid., p. 57
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 Ibid., p. 341
 Plessis, A.The Rise and Fall of the SecondEmpire: 1852–1871, translated by Jonathan Mandelbaum (Cambridge, Cambridge University Press, 1985), p. 121
 Wall, D. ‘Cybercrime, Media and Insecurity’, p. 57
 Investigatory Powers Act 2016, Chapter 25
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 House of Lords Select Committee on Communications, ‘Social media and criminal offences’, para. 51
 Ibid., para. 52
 Harkin, G. ‘Tragic Erin named Ask.fm in suicide note, claims mother’, Independent Ireland (online), 14 August 2013 < http://www.independent.ie/irish-news/tragic-erin-named-askfm-in-suicide-note-claims-mother-29497140.html>
 Defamation Act 2013, Chapter 26
 The Defamation (Operators of Websites) Regulations 2013, SI 2013/3028
 Brenner, S. ‘At Light Speed’, p. 407
 Ibid., pp. 409-410
 Brenner, S., Schwerha IV, J. ‘Transnational Evidence Gathering and Local Prosecution of International Cybercrime’  20(3) Journal of Computer and Information Law 347, p. 354
 Brenner, S. ‘At Light Speed’, p. 414
 Ibid., p. 415-416
 House of Lords Select Committee on Communications, ‘Social media and criminal offences’, para. 32
 Ibid., p. 5
 Crown Prosecution Service, ‘Guidelines on prosecuting cases involving communications sent via social media’ (October 2016) < http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/>
 Ibid., under Category 4
 Simplified and adapted from House of Lords Select Committee on Communications, ‘Social media and criminal offences’, pp. 30-31
 Chapter 49
 Chapter 34
 Chapter 100
 Chapter 40
 Chapter 21
 Chapter 27
 Chapter 37
 Chapter 44
 Reed, C. ‘Online and Offline Equivalence: Aspiration and Achievement’ 18(3) International Journal of Law and Information Technology 248, p. 248
 Ibid., p. 251
 Patchin, J.. Hinduja, S. ‘Bullies Move beyond the Schoolyard: A Preliminary Look at Cyberbullying’  4(2) Youth Violence and Juvenile Justice 148, p. 152
 Dodds, C. ‘How is Cyberbullying Different from ‘Traditional’ Bullying?’, Cybersmile Foundation (online), 4 September 2014 <https://www.cybersmile.org/blog/how-is-cyberbullying-different-from-traditional-bullying>
 Patchin, J.. Hinduja, S. ‘Bullies Move beyond the Schoolyard’, p. 155
 Ibid., p. 155
 Dodds, C. ‘How is Cyberbullying Different from ‘Traditional’ Bullying?’
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 GSM Association, ‘Mandatory registration of prepaid SIM cards: Addressing Challenges through Best Practice’ (Report, April 2016) <http://www.gsma.com/publicpolicy/wp-content/uploads/2016/04/GSMA2016_Report_MandatoryRegistrationOfPrepaidSIMCards.pdf>, p. 4
 GSM Association, ‘Mandatory registration of prepaid SIM cards: Addressing Challenges’
 Ibid., p. 8
 Identity Cards Act 2006, Chapter 15
 Ibid., s. 1
 GSM Association, ‘Mandatory registration of prepaid SIM cards: Addressing Challenges’, p. 9
 Ibid., p. 13
 GSM Association, ‘Mandatory registration of prepaid SIM cards’ (White Paper, November 2013) <http://www.gsma.com/publicpolicy/wp-content/uploads/2013/11/GSMA_White-Paper_Mandatory-Registration-of-Prepaid-SIM-Users_32pgWEBv3.pdf>
 GSM Association, ‘Mandatory registration of prepaid SIM cards: Addressing Challenges’, p. 14
 Convention on Cybercrime 2001, Council of Europe Treaty Series No. 185, Budapest, 23 November 2001
 Bischoff, P. ‘A brief history of China’s campaign to enforce real-name registration online’, TechInAsia (online), 5 February 2015 <https://www.techinasia.com/history-chinas-campaign-enforce-realname-registration-online>
 Custer, C. ‘Lax Real-Name Policies Hurting Chinese Dating Sites’ TechInAsia (online), 17 December 2012 < https://www.techinasia.com/lax-realname-policies-hurting-chinese-dating-sites>
 Caragliano, D. ‘Why China’s ‘Real Name’ Internet Policy Doesn’t Work’
 Custer, C. ‘Lax Real-Name Policies Hurting Chinese Dating Sites’
 Caragliano, D. ‘Why China’s ‘Real Name’ Internet Policy Doesn’t Work’
 Shu, C. ‘China attempts to reinforce real-name registration for Internet users’, Techcrunch (online), 1 June 2016 < https://techcrunch.com/2016/06/01/china-attempts-to-reinforce-real-name-registration-for-internet-users/>
 Custer, C. ‘China to start seriously enforcing real-name mobile registration, government claims’, TechInAsia (online), 1 June 2016 < https://www.techinasia.com/china-start-enforcing-realname-mobile-registration-government-claims>
 Hatton, C. ‘Is Weibo on the way out?’, BBC News (online), 24 February 2015 <http://www.bbc.co.uk/news/blogs-china-blog-31598865>
 Custer, C. ‘How to Post to Sina Weibo Without Registering Your Real Name’, TechInAsia (online), 30 March 2012 < https://www.techinasia.com/post-sina-weibo-registering-real>
 Caragliano, D. ‘Why China’s ‘Real Name’ Internet Policy Doesn’t Work’
 House of Lords Select Committee on Communications, ‘Social media and criminal offences’, para. 54
 Edwards, L., McAuley, D. ‘What’s in a name? Real name policies and social networks’ (Strathclyde University, Nottingham University, 2013)
<http://www.cs.nott.ac.uk/~pszdrm/papers/2013_NamesHavePower%20paris%20vn.pdf>, Part 2
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BBC News, ‘Massive networks of fake accounts found on Twitter’, BBC News (online), 24 January 2017
 See para. 3.2
 See para. 3.3
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