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With around 46.6 million people online every single day in the UK, the internet can feel like a wild and lawless place. Scams and catfishes abound, while what people actually end up getting arrested for appears to vary from year to year, person to person and case to case.
Take the England football fan who went viral this summer after shoving a flare up his arse and jubilantly snorting keys of white powder on film. “I was off my face and I loved every minute,” he later told the Sun. But the guy was never questioned by police – so what figures? Does that mean anyone can post anything?Turns out, your posts can get you in trouble with the law – but not always in the ways you’d think. With that in mind, here’s what you need to know about posting illegal shit on social media.
It's the morning after the night before and you're swiping through your mates' Instagram stories only to spot a blurry pic of you with a note up your nose “3h” ago. You immediately pack your bags and go on the run, convinced that there’ll be police banging down your door any moment. Turns out you needn't panic. Errant drug photos from the sesh might get you fired, but they’re not necessarily going to land you in prison. “To be convicted, the magistrates or jury need to be sure that you have done the act that you are charged with,” explains Brian Hegarty, partner and head of crime at David Gray Solicitors.
DRUG PHOTOS AND VIDEOS
“If a photo of you taking drugs ends up on social media and that is the only evidence, you are very unlikely to be charged for drugs offences in relation to it,” he continues. “The Crown Prosecution Service (CPS) would have to prove what the drugs were and this is not something that they can do from a photo.” In other words, the aforementioned football fan could have been snorting baking powder.That said, selling drugs on social media is a very different story. You'd likely be investigated if your posts fell into the hands of the police (perhaps surprising, considering how many dealers use Instagram and Snapchat.)“There is the offence ‘offering or being concerned in the supply of a controlled drug’, which is prosecuted by proving the existence of an offer,” explains Hannah Costley, solicitor in the crime and regulatory team at Slater Heelis Solicitors. “It doesn’t matter if you are not found to be in possession of any drugs,” she adds. “Social media and mobile phone data actually form the bulk of the evidence for large-scale drugs cases.”
Posts deemed offensive have certainly led to arrests in the past – ranging from the guy who joked about blowing up an airport to some of the men who sent racist abuse to England football players. But such arrests are few and far between, and what counts as offensive is very much up for debate.“Email and social media posts are covered by the Malicious Communications Act, which covers a wide range of online activity,” says Hegarty.
OFFENSIVE OR ABUSIVE POSTS
Whether a post is considered illegal usually depends on the person or group that it’s directed towards. “If there is a racist or homophobic element – or there is an element of criminality, for example, terrorist content, or content used to incite hatred or crime – then this could cause the posts themselves to be grounds for prosecution,” he adds. Things get complicated when it comes to whether a post was intended as a “joke” (as was the case of the airport bomb tweet) because of the right to freedom of speech. But the aforementioned won’t always be a valid excuse if you end up getting in trouble. “Freedom of speech is always allowed, subject to you not contravening the law,” says Hegarty. “You have no inalienable right to threaten, abuse or lie online and then hide behind freedom of speech.” In addition, posting something that damages someone’s reputation could fall under libel. That said, libellous posts would be a matter for the civil courts. You might have to pay damages, but it wouldn't necessarily involve the police and CPS.
‘Why would anyone post photos or videos of themselves shoplifting?’ you might think. Well, tell that to members of TikTok’s “borrowing” community, known for sharing shoplifting tips and footage of stealing. But could these anti-capitalist teens get arrested?
“It depends on what is shown in the photos or footage, but posts of this nature may lead the police to conduct a search of your house under powers given to them in the Police and Criminal Evidence Act,” warns Hegarty. “If they locate stolen goods within your home, you could be questioned, charged and ultimately convicted for a theft-based offence.” And before you think about selling on your stolen goods, it’s worth knowing about the additional offence of handling. “‘Handling’ is when you knew or ought to have reasonably known that you were dealing with items that had been obtained dishonestly,” explains Costley. “The sentence ranges from a discharge [where you are released but still acquire a criminal record] to eight years in custody.”
Over on TikTok, #speeding has over 485 million views, with many of the vids showing car speedometers flickering well above the speed limit. Because of this, TikTok now adds warnings to content that depicts reckless driving, and you could get banned from the platform for breaching the terms of service. But could spinning some donuts in a car park get you in trouble with the law as well as the mods? According to Hegarty, the answer is yes. “Video footage of dangerous driving is a regular feature of prosecutions,” he says. “If you are considering posting a video of yourself or a friend performing a dangerous driving manoeuvre, I would advise you to think again.”
Costley agrees that posting yourself driving dangerously is risky, especially if you’ve already attracted the attention of the police. “I had a client who was involved in a police pursuit and the passengers live streamed the entire incident on Instagram – needless to say, it was easy for the police to identify the driver.”
Revenge porn became a crime in 2015, making it illegal to be the kind of dickhead who shares private sexual photos or videos of another person without their consent. “The sharing has to be done with the purpose of causing embarrassment or distress,” stresses Costley. “You would not be prosecuted if you accidentally sent an intimate photo of your partner to the wrong person.” Thankfully, the recent 2021 Domestic Abuse Act has now made revenge porn threats illegal too, meaning you don’t even need to post someone’s nudes to be committing a crime.Hegarty explains: “It is a serious offence, and if heard in the Crown Court you could receive up to two years in prison for it and an unlimited fine.”
Being called up for jury service can be exciting, especially if the case is a juicy one, but posting anything about a trial online can land you in hot water. The golden rule is to not mention it, to anyone. Especially not to post pics of your sick #murdertrial outfits or “Did she do it?” Twitter polls. “Jurors are permitted only to assess the case on the evidence before them in court,” explains Costley. “However, the advent of the internet and social media has seen a number of prosecutions for jurors who have either been found to have conducted online research or made comments on social media about the case either mid or post-trial.” Doing this puts you in contempt of court and risks influencing a case and jeopardising a defendant’s right to a fair trial. According to Costley, this is taken pretty seriously, with penalties ranging from a fine to a custodial sentence. So there you have it – turns out snorting drugs on main probably won’t land you in jail, but trying to resell stolen goods from Superdrug on your Instagram might. Either way, it’s probably best to keep your criminal activities offline, lest you become that one person the police decide to make an example out of.@annavictoriasamson