False, Fake and Facebook

March 9, 2016

We all know that, on the Internet, nobody knows you’re a dog – unless you happen to be Lulu, the dog grassed up by the barrister acting for BskyB in their dispute with EDS. And, as the age of IoT nears, the wits have it that soon nobody will know you’re a fridge. You cannot take things you see on the Internet at face value. Like many others, I am still waiting for my gold bar delivery from Nigeria that was promised by Barack Obama’s widow.

So it was appropriate for the CPS, when freshening its guidelines on prosecuting social media cases, to include new guidance relating to false or offensive social media profiles. I was impressed by the guidelines generally but the material on false social media, which gained the lion’s share of press coverage, is defective in my view in terms of emphasis. It reads as follows:

{i}The act of setting up a false social networking account or website, or the creation of a false or offensive profile or alias could amount to a criminal offence, depending on the circumstances.
For example, the former estranged partner of a victim creates a profile of the victim on a Facebook page, to attack the character of the victim, and the profile includes material that is grossly offensive, false, menacing or obscene.
Depending on the circumstances, an offence may be committed under Categories 1, 2 or 4. Note that a Category 4 offence may be committed by way of a communication or message which is “false”.
Alternatively, a false or offensive profile may amount to an offence under the Public Order Act 1986. See, for example, the case ofS v CPS [2008] EWHC 438 (Admin), in which the defendant was convicted of Causing a person harassment, alarm or distress under s4A of the Act, for loading onto a website an image of the victim, together with text, that alleged by implication a number of false assertions, including that the victim had been convicted of violence in the past.
If there is any financial gain or loss incurred as a consequence of the false account or profile, an offence may also be committed under the Fraud Act 2006: under section 8 possession or making or supplying ‘articles’ for use in frauds includes any program or data held in electronic form. For further guidance prosecutors should refer to the CPS Legal Guidance on the Fraud Act 2006, in particular that relating to ss6-8 of the Act.
Note that some social networking sites may disable false accounts when they became aware of them.{/i}

Beyond the obvious typo in the last line, my beef is that the references to the Fraud Act are insufficient. There can be no question but that a false representation will have been made when a false profile is set up. The only issue is whether the ingredient of the offence that requires an intention ‘to cause loss to another or to expose another to a risk of loss’ (Fraud Act 2006, s 2) is likely to be present. Proving ‘a risk of loss’ has to be a lot easier than focusing on grossly offensive and harassment. To give a simple example, a posting that claims to be from X which includes ‘X’ admitting to (even minor) dishonesty might lead to dismissal or suspension from a job, might affect future employment prospects or might even lead to such embarrassment that the real X feels bound to take time off work. All these scenarios involve loss or the risk of loss. That sort of example might usefully be added to the guidelines.

And, of course, I realise that it will not always be {i}appropriate{/i} to prosecute – the wider tests for that also apply.

My CPS point is a quibble but I have more than a quibble with the Competition and Markets Authority who proudly published details of enforcement action they have taken against a company supplying fake online reviews. The CMA {press release of 4 March: https://www.gov.uk/government/news/cma-takes-enforcement-action-against-fake-online-reviews} tells us that the CMA investigation had revealed that TotalSEO & Marketing Ltd, a search engine optimisation and online marketing company, had written over 800 fake positive reviews for 86 small businesses that were published across 26 different websites which contain customer reviews. TotalSEO co-operated with the CMA’s investigation and the company and its directors have undertaken to the CMA that they won’t do it again and that they ‘will take steps to remove the fake reviews already posted online’. Well, that’s really telling them.

This seems like the velvet fist in the velvet glove. The CMA appears to have produced clear evidence of fraud – lots of false representations for financial gain here surely – and has decided that an undertaking is enough. I find that hard to accept. If ever they were a case for a prosecution ‘pour encourager les autres’ this was it – there might then have been some salutary publicity. The stark lesson that some may draw is that serious and considered commercial fraud online is not as serious as offline cheating.

That different rules apply online is further demonstrated by the Facebook tax changes. It appears that Facebook is set to pay millions of pounds more in tax in the UK after a major overhaul of its tax structure. According to the BBC it will no longer route sales through Ireland for its largest advertisers. Note that Facebook already employs 850 people in the UK and is building a new headquarters in London. It is not suddenly switching staff from Ireland to the UK. It is, under a combination of pressures, abandoning a pretence that should have been challenged long ago. Perhaps the HMRC was investigating but I venture to suggest that it might have intervened somewhat earlier and said to Fakebook, ‘these invoices contain some fibs – we’re taxing you anyway’.

There is a strong case to suggest that Facebook Ireland has the most offensive fake profile of all. Just as well it is outside the jurisdiction of the CPS.