Guidelines released in relation to social media prosecutions

The Director of Public Prosecutions (DPP) has issued interim guidelines for use by the Criminal Prosecution Service when considering whether to bring charges in cases involving communications sent via social media such as Facebook and Twitter (including instances of re-sending and re-tweeting).

At the same time as publishing the guidelines, the DPP is consulting on them, with a closing date for responses of 13 March 2013. The guidance, which has immediate effect, sets out four different types of communicated content that might give grounds for prosecution, but focuses on messages that may be considered grossly offensive, indecent, obscene or false, under the Malicious Communications Act 1988 or the Communications Act 2003. He cautions prosecutors to be very careful about bringing charges under these provisions, and to apply a high threshold in the light of the right to freedom of speech under Article 10 of the European Convention on Human Rights, which requires that restrictions on that right must be both necessary and proportionate.

They should not consider proceeding unless the message is grossly offensive (as opposed to merely offensive, unpopular, shocking or rude) and should take into account matters such as whether the content was quickly removed following a complaint, whether it was intended for a wide audience, and whether the person who posted the message has expressed remorse. Prosecution will rarely be in the public interest if the sender is a minor, but will be more likely if there is clear evidence of an intention to cause distress or anxiety to a particular victim.

Background

Section 1 of the Malicious Communications Act 1988 deals with the sending to another of an electronic communication which is indecent or grossly offensive, or which conveys a threat, or which is false, provided there is an intention to cause distress or anxiety to the recipient. The offence is one of sending, delivering or transmitting, so there is no legal requirement for the communication to reach the intended recipient.

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 is "grossly offensive" or of an "indecent, obscene or menacing character". The same section also provides that it is an offence to send or cause to be sent a false message "for the purpose of causing annoyance, inconvenience or needless anxiety to another." The defendant must be shown to have intended or been 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; there is no requirement that any person sees the message or be offended by it.

In Chambers v DPP [2012] EWHC 2157 (Admin), the High Court held that because a message sent by Twitter is accessible to all who have access to the internet, it is a message sent via a "public electronic communications network"

Relevant types of communication

The guidelines set out four different types of communicated content that might give grounds for prosecution. The first three of these are:

1 Credible threats of violence or damage.

Where a communication falls to be considered under section 127 of the Communications Act 2003, the DPP cites the judge's comment in;

Chambers v DPP ‘that "a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a)], for the simple reason that the message lacks menace."

He adds that as a general rule, threats that are not credible should not be prosecuted unless they form part of a campaign of harassment specifically within the meaning of the Protection from Harassment Act 1997.

As a final point, the DPP adds that prosecutors should pay particular regard to any evidence of discrimination on grounds of race, religion, disability, sexual orientation or transgender identity, and he cites the statutory provisions relating to such discrimination.

2 Specific targeting of one or more individuals that might constitute harassment, stalking or some other offence such as blackmail.

If this targeting appears to form part of a course of conduct within the meaning set out in section 7 of the Protection from Harassment Act, the guidelines refer the prosecutor to separate CPS guidance on stalking and harassment. If the communication amounts to blackmail, the blackmail itself should be prosecuted. The DPP repeats his point on the need to take any discriminatory aspects of the communication into account.

3 Breach of a court order amounting to an offence (for example, under the Contempt of Court Act 1981).

Prosecutors should follow the existing CPS guidelines on contempt of court and reporting restrictions.

The fourth category of message is the main focus of the guidelines. It consists in communications that do not fall within any of the above categories, but may be considered grossly offensive, indecent, obscene or false, under the Malicious Communications Act 1988 or the Communications Act 2003. The guidelines discuss how prosecutors should go about assessing whether prosecution will be in the public interest in such cases.

High threshold to be applied

The DPP points out that millions of communications are sent via social media every day, and that if these statutory provisions were to be applied to all of them, not only would a very large number of cases appear before the courts, but it might also have a chilling effect on freedom of speech. For this reason, he cautions prosecutors to be very careful about bringing charges under these provisions, and to apply a high threshold in the light of the right to freedom of speech under Article 10 of the European Convention on Human Rights. Under case law, restrictions on that right must be both necessary and proportionate. Again, the judge in Chambers v DPP is quoted:

"Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour" should not be restricted by section 127 of the Communications Act 2003 "even if distasteful to some or painful to those subjected to it".

What is required under both of the relevant Acts is gross offensiveness.

Prosecutors should take fully into account the fact that social media is a context quite different from that in which other types of communication are sent: it is ubiquitous and instantaneous, and messages are often written spontaneously, intended for few people but ending up being read by millions.

Prosecutors should therefore only consider proceeding if the message is more than just:

  • Offensive, shocking or disturbing.
  • Satirical, iconoclastic or rude comment.
  • An expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour.

For the whole article please see the PDF below.

For further information or advice in relation to this, please contact andrew.cave@hcsolicitors.co.uk

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.