Investigatory Powers Commissioner’s Annual Report 2019
Freedom of expression
12.54
Following on from our work in 2018, we have continued to focus on how well forces set
out the applicable crime threshold in their requests. Applicants are required to state which
crime is under investigation but, on occasion, we can see some offences broadly and nonspecifically described as “harassment offences” or “communications offences”. Clarity in
this regard is important for two reasons (i) to ensure that the offence is one which crosses
the serious crime threshold if events data is sought, and (ii) to ensure that the public
authority is aware of a person’s freedom of expression. This point has been a priority this
year; we have focused on the implication of the acquisition of CD in terms of potential
interference with the subject’s rights over and above their right to privacy – specifically
Article 10 ECHR (freedom of expression).
12.55
We identified a small number of cases where the police have investigated those who have
sent messages which may upset the local community but, in our view, are a long way
short of being grossly offensive. In general, however, we have found that police rarely
use their investigatory powers in such a context, and most investigations into malicious
communications or harassment are clearly within the criminal threshold relating to
domestic violence or clearly threatening behaviour rather than social media disputes
between people of differing political, philosophical or religious opinion. We will remain
vigilant in this area as we recognise the police are often called upon, and feel pressure
to, address non-criminal social issues. We have made recommendations to LEAs that, in
order to allow for applications relating to harassment and communications offences to be
duly considered by OCDA, they must include an accurate summary of what was said or
communicated to help authorising officers determine if the criminal threshold is met.
12.56
The need to review data retention and handling is covered elsewhere in this report but
we have had initial conversations during inspections in relation to CD retention. These
discussions have identified potential vulnerabilities, including the failure of some workflow
systems to allow for automated review, retention and disposal processes (RRD) and
the practice of individually saving copies of communications data on desktops during
investigative work. More details on how we will investigate these issues in 2020 are set out
under Data Assurance (see chapter 7).
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