CPS publishes interim guidelines where tweets and social media comments could lead to prosecution

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In the wake of the Sally Bercow’s tweet about Lord McAlpine, the Government’s Crown Prosecution Service (CPS) has been under intense pressure to clarify UK law as it applies to abusive tweets and other social media comment and where this could lead to criminal prosecution.

On the 19 December, Keir Starmer QC, the Director of Public Prosecutions, issued interim guidelines on this matter and announced a public consultation exercise that will end on 13 March 2013, after which a full guidance note is expected to be published.

What’s clear is that the CPS interim 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 interim 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.

Sally Bercow tweeted to 60,000 followers: Why is Lord McAlpine trending? *innocent face*

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 the case of Lord McAlpine – who was libelled on Twitter when users wrongly indicated he was suspected of being a paedophile – is now free to allege individuals had committed an offence by mounting a campaign of harassment against him.

Keir Starmer QC is seeking a range of views on the interim guidelines by 13 March 2013

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 interim 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.

Javed Khan, CEO of Victim Support said the new distinction between credible threats and offence is to be welcomed. “Victims tell us sustained and vindictive targeting on social media can leave long-lasting emotional and psychological scars so we warmly welcome clarification on how prosecutors will deal with online threats or harassment.”

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. “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,” observes Keir Stammer QC.

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 CPC interim 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.

Ardi Kolah is author of Essential Law for Marketers 2nd edition (£19.99) published on 3 January by Kogan Page. Click on the book to order your copy today on Amazon