High Threshold for Offensive Social Media Prosecutions

According to the director of public prosecutions Keir Starmer QC the Crown Prosecution Service guidelines proposed today will give a free hand to insolent and satirical comments.

The requirement of these guidelines is to make communications distinguishable- communications that may constitute credible threats of violence, harassment or stalking or may amount to a breach of a court order, and those that are grossly offensive, indecent, obscene or false.

The first three categories of offences should ‘be prosecuted robustly under the relevant legislation”, which is in this case Protection from Harassment Act. The other cases from the final category will be subject to 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,’ he said.

The guidelines remind that only in the cases when prosecutors agree that the communication in question is not only offensive but also satirical, distasteful and even shocking, just then they are able to take action under the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. . On the other hand, if communication is proved to be offensive, indecent, unpopular or shocking but there is not enough evidence that there is violence or blackmailing then prosecutors are just warned to be considerably cautious.

The answer of a partner at Manches called Jonathan Snade was: ‘The key focus of the guidelines is on the need for prosecutors to draw a balance between criminal offences potentially committed (1) via communications which threaten violence to a person or damage to property, which specifically target individuals with harassment or blackmail and which may breach a court order (for example through an unlawful disclosure of information or a person’s identity) and (2) via those communications which do none of those things but which are nevertheless grossly offensive, indecent, obscene or false.”

When talking about the latter category he meant that an important thing for CPS is the need for prosecutors to take into consideration the right to freedom of speech under Article 10 of the European Convention on Human Rights and not on the last place that hundreds of millions nowadays use social media in order to communicate.

Due to the guidelines cases must be threshed out with their own facts. It is assumed that public interest shouldn’t be that big when the suspect is under 18 or the communication in question was swiftly removed from some social site.

13 March is the date when the public consultation on the guidelines will be closed.

Please check our Anti-bullying and Harassment Policy