CPS guidelines doesn’t create “litigant’s charter” for those offended by social media

June 30, 2013,  Guru in a Bottle  2 comments

Keir Starmer QC, the Director of Public Prosecutions has just published (20 June 2013) the finalised guidelines on circumstances under which prosecutors may pursue a legal action against those who post comments on social media.

What’s clear is that the CPS guidelines don’t create some form of ‘litigants’ charter’ where the police and the CPS are automatically involved in every instance of social media comment considered as rude, distasteful or even painful to those on the receiving end.

The guidelines indicate that there may be mitigating circumstances under which those making unguarded and grossly offensive comments on Twitter or Facebook but repent by taking them down swiftly and express remorse may be able to evade legal sanctions.

However, such cases are very different from instances where someone is being victimised by being on the receiving end of credible threats of violence, harassment or stalking or where the nature of communication is so toxic as to be grossly offensive, indecent, obscene or false.

So called ‘trolls’ that engage in this type activity and use social networks in order to pursue their victims can expect to be treated very differently by the law enforcement agencies.

For example, Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a ‘public electronic communications network’ a message or other matter that’s ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’.

The same section also provides that it’s an offence or cause to be sent a false message for the ‘purpose of causing annoyance, inconvenience or needless anxiety to another.’

In such cases, the prosecution needs to show that the perpetrator intended or was aware that the message was grossly offensive, indecent or menacing, which can be inferred from the terms of the message or from the defendant’s knowledge of the likely recipient. The offence is committed by sending the message and there’s no requirement that any person sees the message or be offended by it.

In order to determine whether tweets and social media comments could lead to prosecution, a balance needs to be struck by the police and the CPS: evidence of wrong doing, the likelihood of a criminal conviction being achieved and whether proceedings can be seen to be in the public interest.

And all of this needs to be seen through the lens of the right to freedom of speech, as enshrined by Article 10 of the European Convention on Human Rights that provides: “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…”

That said, the CPC guidelines shouldn’t be interrupted as being a ‘rogues charter’ by those who want to engage in such activities as there are other legal remedies available, such as the law of defamation at the disposal of those who feel aggrieved.

Clearly the CPS is acutely aware that the ever-increasing volume of communication online could result in it being swamped by cases that allege posts are grossly offensive, obscene or menacing or that are false and there’s an intention to cause annoyance, inconvenience or needless anxiety to another.

“Millions of communications are sent via social media every day, and prosecutors must be equipped to deal appropriately and consistently with cases arising from the growing use of these new ways of communicating.

“When I published the interim guidelines [19 December 2012] on prosecuting cases involving social media, I aimed to stroke the right balance between freedom of expression and the need to uphold the criminal law,” observes the Director of Public Prosecutions, Keir Stammer QC.

The guidelines make clear there’s a high threshold that must be met before criminal proceedings are brought and in many cases a prosecution is unlikely to be in the public interest.

“There are cases that can give rise to complex issues but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it,” he adds.

The courts are likely to take the same view, too.

In Chambers v DPP {2012] EWHC 2157 (Admin), the Lord Chief Justice said: “Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matter, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003].”

In practical terms, what the CPS guidelines provide is that for someone to face prosecution a post must be shown to be more than offensive, shocking or disturbing; more than satirical, iconoclastic or rude; more than the expression of unpopular or unfashionable opinion about serious or trivial matters or banter or humour, even if distasteful or painful to those subject to it.

A further hurdle then needs to be cleared – and that is whether a prosecution is required in the public interest, which will largely depend on the circumstances of and harm caused to the victim where the communication is targeted at a particular person.

The rules and best practice around the use of social media is covered extensively in Essential Law for Marketers.

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