Written 20th June 2013 by Olliers Solicitors

The Crown have today published new guidelines on prosecuting communications sent via social media, which will have immediate effect. Only time will tell if these changes will result in a surge of prosecutions, or whether, as the requisite high threshold suggests, few cases will actually end up before the Courts.

Social Media

Comments made via social media can now be prosecuted under four heads:

  1. That they constitute credible threats of violence and therefore amount to an offence under the Offences Against the person Act 1861;
  2. That they constitute harassment or stalking with the meaning of the Protection from Harassment Act 1997, when targeting a specific individual or individuals;
  3. That they amount to a Breach of a Court Order;
  4. None of the above, but are grossly offensive, indecent or false.

In respect of the first three examples, the Crown are told to prosecute such cases ‘robustly’ where there is sufficient evidence to secure a conviction and a prosecution is deemed to be in the public interest.

It is this latter category, however, that appears to be the more problematic, and even the Crown concede that few cases may ultimately be pursued.

There is, primarily, the concern that any such prosecution has the potential for a ‘chilling effect on free speech’ and it is on this basis that a high threshold must be met before the evidential stage in these cases can be passed. Even if this is so, in many cases, a prosecution will simply not be viewed as being in the public interest.

Free Speech

Free speech is protected by Article 10 of the European Convention on Human Rights, and prosecutors are reminded, within these new guidelines, that the Malicious Communications Act 1988 and the Communications Act 2003, which make grossly offensive, indecent or false communications a criminal offence, must be interpreted consistently with this.

It was held by the European Court of Human Rights in Sunday Times v UK (No 2) that “Freedom of expression constitutes one of the essential foundations of a democratic society… it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb…”.

So, what will, in reality, allow a comment to be interpreted, not simply as one which causes ‘offence’ and therefore does not amount to a criminal offence, but as one which is ‘grossly offensive’ and therefore punishable by the Courts?

In DPP v Collins, Lord Bingham stated: “There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates”.

Clearly it is the context of these communications that both make prosecution both necessary and problematic. On a daily basis millions of communications are sent via sites such as Twitter, Facebook and Youtube, which, in theory, could result in hundreds of prosecutions each month. Undoubtedly the context in which social media conversations take place is different to other forms of communication.

Offensive Comments

As the Crown conceded ‘banter, jokes and offensive comments are commonplace and often spontaneous’. An analogy can and has been drawn with people chatting in a bar. Discussions are spontaneous and often responses are ill thought out and uninhibited. What may not offend the intended recipient may well offend any number of people who come across the conversation by chance. It is clearly for this reason that such a high threshold test is applied before any prosecution is pursued.

For those few cases that pass the evidential stage, that are deemed to be more than offensive, disturbing, rude, distasteful or even painful, the Crown must then still consider whether it is in the interests of justice to pursue a prosecution.

Genuine remorse, swift removal of the offensive communication, the fact that the communication was not intended for a wide audience or for the victim of the comment to see and age of the perpetrator will all be relevant factors which will make prosecution unlikely. So a child sending malicious messages via Facebook may well never face a prosecution due to their age, on the basis that they may not appreciate the potential harm and seriousness of their communications.

Clearly the law is trying to properly balance a person’s freedom of expression against the ever evolving modes of social communication and the rights of the victims against ‘internet trolls’. Whether in practice, however, such a balance will be met to the satisfaction of the majority is clearly yet to be seen.

Laura Baumanis

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