The Director of Public Prosecutions (DPP), Keir Starmer QC, has launched a public consultation seeking views on its interim guidelines for the prosecution of cases involving communications sent via social media such as Facebook, LinkedIn and Twitter.
The interim guidelines, introduced with immediate effect on 19 December, attempt to strike a balance between the protection of individuals from threats or targeted harassment on social media and an individual’s right to freedom of expression under Article 10 of the European Convention on Human Rights. The new guidelines have been prompted by growing concerns over the proportionality of prosecutions following high profile cases such as Chambers v DPP, in which the May 2010 conviction of Paul Chambers for sending a “menacing” tweet threatening to blow up Robin Hood Airport in South Yorkshire was overturned on appeal.
The interim guidelines require prosecutors to consider four different types of communicated content as part of their initial assessment of grounds for prosecution. The first three categories will, in general, be prosecuted robustly:
- Communications which may constitute credible threats of violence
- Communications which may constitute harassment or stalking
- Communications which may amount to a breach of a court order
The fourth category, which is the main focus of the new guidelines, deals with communications which are subject to a higher threshold and where in many cases prosecution is unlikely to be in the public interest:
- Communications which do not fall into any of the above categories and fall to be considered separately, ie those which may be considered grossly offensive, indecent, obscene or false, under the Malicious Communications Act 1988 or the Communications Act 2003.
For the higher threshold to be met in the final category the prosecutor must be satisfied that the communication is grossly offensive and that it is in the public interest to prosecute. This is unlikely to be the case where for example the communication is removed swiftly, was not intended for a wide audience or did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society. Prosecution will rarely be considered to be in the public interest where the sender is a minor.
The DPP has urged prosecutors to exercise caution when applying these statutory provisions to the millions of communications sent via social media every day. It is hoped that a higher threshold for the final category will ensure that the courts are not flooded with cases and that the individual’s right to freedom of speech is not impinged. Whilst the guidelines provide useful procedural structure for the prosecution of offences involving social media, users will still face considerable uncertainty in predicting which communications will fall on the wrong side of the law, particularly when assessing whether a communication would be considered grossly offensive or instead tolerable on the grounds of freedom of expression.
The consultation on the new guidelines closes 13 March 2013.