Out-Law News 3 min. read

Lead prosecutor to consult on new social media case guidelines

The Director of Public Prosecutions (DPP) for England and Wales is to consult on new guidelines on when it is appropriate to bring criminal charges against individuals in connection with messages they post on social media platforms.

Keir Starmer said that guidelines were needed in order to set "clear and consistent" rules governing prosecutors' actions in obtaining a criminal conviction against individuals that post offensive messages on Twitter, Facebook or other social media.

He said that the "context" in which "social media dialogue" takes place is "quite different" to the context of other communications and that the Crown Prosecution Services (CPS) has to assess on a "case by case basis" how to balance individuals' rights to free speech with "the need to prosecute serious wrongdoing". Starmer said that those decisions can be difficult to make.

"In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained," Starmer said in a CPS blog. "But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest."

"To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration," he added.

Starmer said that the CPS would draw up "interim guidelines" which would be open to "wide public consultation". A final set of guidelines would then be published, he added. Starmer said he would discuss the contents of the guidelines with campaigners, lawyers, academics, social media experts and law enforcement bodies in a bid to "ensure that the guidelines are as fully informed as possible".

"Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers," Starmer said. "The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media."

Starmer revealed that he had decided not to pursue a prosecution against Daniel Thomas, a semi-professional footballer, for an "offensive ... homophobic message" Thomas had posted about Olympic divers Tom Daley and Pete Waterfield. He said that, following an assessment of the "context and circumstances" of the case, prosecutors had deemed that the message had not been "so grossly offensive that criminal charges need to be brought."

Technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, urged the director of public prosecutions to help clear up what is meant by a "grossly offensive" communication under UK communications laws. Scanlon has already called for reforms to the Communications Act to address the lack of clarity over the term.

Under 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".

"There are a number of grey areas here in which these proposed new guidelines could take the lead in clarifying," Scanlon said. "The first is in relation to the concept of a ‘grossly offensive’ communication."

"This phrase is used in the legislation so it is difficult for the public prosecutors office to come out and say that they will not be taking enforcement action against the makers of such statements, and only pursuing communications that are threatening in nature. So it would give clarity, at least in terms of how the law is to be applied, if the guidelines provide a detailed definition of the public prosecutor’s understanding of this phrase. So far the courts have given little guidance to assist in this process," he added.

Scanlon said that there was a "second grey area" relating to the way that social media communications are "distributed" that Starmer should seek to clarify. He said the new guidelines should not require prosecutors to consider whether "controversial tweets" are "intended for a wide audience". The High Court has already ruled in a high profile case that the intention of the sender of communications is "not important" in determining the legality of the message, Scanlon added.

"In the Paul Chambers case the High Court made it clear that intent is not important when it comes to offending section 127 of the Communications Act," Scanlon said. "Unlike the Malicious Communications Act which requires proof that a defendant has a specific harmful purpose in mind when making a communication, the Communications Act offence, according to the Court, is to be enforced even where no such purpose can be identified. So by analogy the defendant’s intention as to matters of distribution would also not be a matter that ought to be taken into account in determining whether or not the communication is of a criminal character."

Editor's note 04/02/13: this story was corrected to reflect the fact that the authority of the Director of Public Prosecutions (DPP) relates to England and Wales and not the whole of the UK.

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