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Free speech rights should influence CPS decisions on whether to prosecute over social media communications, says guidance

Prosecutors should be mindful of observing individuals' rights to free speech when deciding whether to initiate legal action against them over grossly offensive, indecent, obscene or false comments made on social media, according to new guidelines.

Director of Public Prosecutions (DPP) Keir Starmer has issued final guidance to the Crown Prosecution Service (CPS) on when to initiate legal action against those who breach UK communications laws on social media.

Under section 127 of the Communications Act it is an offence if someone "sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character".

Under the Malicious Communications Act it is an offence if someone sends an electronic communication to another person "which conveys a message which is indecent or grossly offensive; a threat; or information which is false and known or believed to be false by the sender; or ... which is, in whole or part, of an indecent or grossly offensive nature" if a purpose of the communication was to "cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated".

Starmer has warned that a "high threshold" should be applied by prosecutors when assessing social media communications in order to account for the large volume of such communications and prevent the legal system being swamped with cases.

The final guidelines state that prosecutors should only consider bringing cases against social media users under UK communications laws "where they are satisfied there is sufficient evidence that the communication in question is more than: offensive, shocking or disturbing; or satirical, iconoclastic or rude comment; or the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it".

However, prosecutors should still consider, even if cases meet this initial threshold, whether bringing a prosecution is "required in the public interest", according to the guidance. When making this assessment, prosecutors should consider the harm suffered by individuals to whom a communication may have been targeted and also account for individuals' rights to freedom of expression, it said. Both the facts and merits of each case must show that a prosecution is necessary and proportionate, it said.

"A prosecution is unlikely to be both necessary and proportionate where: the suspect has expressed genuine remorse; swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it; the communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or the content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression," the guidance said.

There may be other circumstances that could also influence prosecutors' views on the necessity and proportionality of legal action, it said. The "effect on the victim" of communications should be considered in this regard, it said.

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