Criminal Liability for Comments on Social Media
In English football, Manchester United playing Manchester City is one of the big games of the year. Fans and football media go into overdrive (as a Liverpool fan, I state this fact with a tinge of jealousy). During the match in December this year, star United defender Rio Ferdianad was struck on the eye with a coin:
Although in jurisdictions such as South Africa and the United Kingdom one considers themselves immune to criminal sanctions on social media; and living in a fairly liberal, free speech age; there are certain types of speech that no matter what the occasion or platform, what you type may have the potential to land you in prison...
|Rio Ferdinand struck in the eye with coin during match with Manchester City in December 2012|
His eye was not the only target for emotional fans. A 15 year old boy was arrested for racially abusive tweets sent (during the match) to Rio Ferdinand on the microblogging site Twitter. The following statement was made by the Greater Machester Police:
“A 15-year-old boy was arrested on suspicion of a racially aggravated public order offence on the evening of Monday 10 December 2012. He has been bailed pending further inquiries.”
So, this begs the question; what is a racially aggrevatated public order offence? According to the Crown Prosecution Service (CPS) website, an offence is racially aggrevated where the offender shows or is driven by racial hostility where:
- At the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim based on the victim's membership (or presumed membership) of a racial group;
- the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.
The CPS lists a public order offence as being capable of being racially aggravated. While there is no set norm for a social media crime such as this, recent similar incidents provide guidance - a recent racist outburst on Twitter by a 21-year-old student in Swansea earned the student a sentence of 56 days jail time for a racially aggravated public order offence. Almost exactly a year ago, in an incident widely circulated on YouTube, a woman was arrested and refused bail after a racist rant on a tram ride.
Why are these offenses not prosecuted under criminal defamation? Well, because it doesn’t exist in some parts of the world anymore. Criminal defamation was abolished in the United Kingdom in 2009 and this type of social media criminal offence is now dealt with by reference to, amongst others, the Public Order Act and the Crime and Disorder Act.
What about the rest of the globe? Criminal defamation is alive and kicking. Consequently, offences such as the racist rant on social media may well fall into the category of criminal defamation. Leading academic JR Milton defines criminal defamation as the unlawful and intentional publication of matter concerning another which tends to injure his reputation. For those interested in more detail, a non profit company defending freedom of expression rights (article19.org), lists several maps showing all laws relating to civil and criminal defamation.
In defamation law globally, there is usually a distinction made between civil defamation and criminal defamation. The former is said to be easier to prove and satisfy while the latter is typically used in more serious defamatory situations and has a higher onus of proof.
So, if a similar outburst took place within South Afirca (or a jurisdiction that has criminal defamation on the books) what would the potential outcome be?
In the 2008 South African matter of Hoho v The State, a bench of five judges on the Supreme Court of Appeals (SCA) were asked to consider the relevance of criminal defamation. Keep it on the books or put it to pasture? In the end, after weighing up freedom of expression versus human dignity, the SCA decided that criminal defamation has not been abrogated by disuse and is still consonant with the South African constitution.
In a fascinating judgment that deals comprehensively with criminal defamation, it was ultimately concluded that there is still place for defamation in the body of criminal law. Although I do not believe that criminal law should always resolve racist outbursts (we should focus on the root cause), the onus of proof required to secure a criminal conviction will ensure that the offence remains one that is used sporadically at best.
In addition to criminal defamation, a racist outburst on Twitter or social media could be dealt with in South African criminal law by crimen iniuria, which is the unlawful and intentional impairment of a person’s dignity.
While it is clear that certain jurisdictions are moving away from criminal defamation and more towards specific offences, criminal sanctions for certain categories of speech are available world wide. Many in our global village still strongly persecute those who make the wrong statement on a social media platform. By way of example, a man was arrested in 2010 for calling the president of Lebanon a hypocrite and failure on Facebook. In Egypt and China criminal sanctions for social media speech against the regime are common place.