Use of 'derogatory hashtags' on social media might lead to prosecution

Out-Law News | 12 Oct 2016 | 9:52 am | 1 min. read

People who create or encourage others to use a "derogatory hashtag" on social media could be prosecuted in England and Wales, according to new social media guidelines for prosecutors.

The Crown Prosecution Service (CPS) guidelines update those issued in 2013 concerning communications on social media. The guidelines provide details on the types of social media communications that might be lead to prosecution.

"Those who encourage others to commit a communications offence may be charged with encouraging an offence under the Serious Crime Act 2007: for instance, encouragement to tweet or re-tweet a grossly offensive message; or the creation of a derogatory hashtag; or making available personal information (doxing / doxxing), so that individuals can more easily be targeted by others," according to the new guidelines.

Under the guidelines prosecutors would have to consider whether 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".

If the evidence supports that finding the prosecutors would still have to determine whether it is in the public interest to prosecute, with consideration to be given to freedom of expression rights, the guidance said.

Alison Saunders, director of public prosecutions in England and Wales, said: "Social media can be used to educate, entertain and enlighten but there are also people who use it to bully, intimidate and harass. Ignorance is not a defence and perceived anonymity is not an escape. Those who commit these acts, or encourage others to do the same, can and will be prosecuted."

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".

According to the guidance, people that express "genuine remorse" after posting malicious or grossly offensive messages, or those of an indecent, obscene or menacing character, are unlikely to be prosecuted, it said. The "swift" removal of such communications from social media services may also reduce the risk of prosecution.