By Daniel Hunter

The Director of Public Prosecutions, Keir Starmer QC, has published interim guidelines setting out the approach prosecutors should take in cases involving communications sent via social media.

The guidelines are designed to give clear advice to prosecutors and ensure a consistency of approach across the CPS to these types of cases.

Mr Starmer said:

"These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.

"They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.

"The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.

"The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it."

ACPO lead on communications Chief Constable Andy Trotter said:

"This interim guidance sets out clear advice to police forces in England and Wales on handling complaints from the public relating to social media. It takes a common sense approach and will help support consistency from prosecutors and police. We welcome the opportunity for early consultation to take place between CPS and police before any action is taken in these cases."

Chief Executive of Victim Support Javed Khan said:

"Victims tell us that 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.

"The distinction between communications which constitute a credible threat and those which may merely cause offence is sorely needed.

"In particular we welcome the guideline which makes a prosecution more likely if a victim is specifically targeted and this has a significant impact on them.

"We will watch how the interim guidelines are used with interest and will respond to them in detail during the consultation period."

The interim guidelines do not change the law, but set out the approach prosecutors should follow when considering cases relating to communications sent via social media. The guidelines come into immediate effect, and are subject to a three-month public consultation which starts today.

Mr Starmer added:

"We want the interim guidelines to be as fully informed as possible, which is why we held a series of roundtable discussions and meetings with Twitter, Facebook, Liberty and other stakeholders, police and regulators, victim groups, academics, journalists and bloggers, lawyers and sports organisations ahead of drafting them. I would now encourage everyone with an interest in this matter to give us their views by responding to the public consultation."

Initial assessment

As part of their initial assessment, prosecutors are now required to distinguish between:

1) Communications which may constitute credible threats of violence

2) Communications which may constitute harassment or stalking

3) Communications which may amount to a breach of a court order

4) Communications which do not fall into any of the above categories and fall to be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false.

Those offences falling within the first three categories should, in general, be prosecuted robustly under the relevant legislation, for example the Protection from Harassment Act (1997), where the test set out in the Code for Crown Prosecutors is satisfied.

Cases which fall within the final category will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.

The high threshold

Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 engage Article 10 of the European Convention of Human Rights, therefore prosecutors are reminded that they must be interpreted consistently with the free speech principles in Article 10.

Prosecutors are also reminded that what is prohibited under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is the sending of a communication that is grossly offensive. They should only proceed with cases involving such an offence where they are satisfied that the communication in question is more than:

Offensive, shocking or disturbing; or
Satirical, iconoclastic or rude comment; or
The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

The public interest

In line with the free speech principles in Article 10, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate.

A prosecution is unlikely to be both necessary and proportionate where:

a) The suspect has swiftly taken action to remove the communication or expressed genuine remorse;

b) Swift and effective action has been taken by others, for example service providers, to remove the communication in question or otherwise block access to it;

c) The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or

d) The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.

The age and maturity of suspect should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and as such prosecutions of children are rarely likely to be in the public interest.

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