The Director of Public Prosecutions (DPP), Keir Starmer QC, has published new guidelines on the approach prosecutors should take when dealing with criminal cases that involve communications sent via social media. The guidelines replace interim advice published in December.

Surge in ‘Twitter’ cases

The last few years have seen an explosion in the number of people using social media as a method of communication, with millions of tweets, posts, likes and comments sent every day. Inevitably, the content of some of these communications will fall foul of the authorities, but where and how is the line drawn?

The DPP initially approached the question on a case by case basis, resulting in a few high-profile prosecutions that highlighted the tension between the need to uphold the law and an individual’s right to freedom of expression.

“Joke” Twitter case

Most notorious of all was the case of Paul Chambers who, frustrated at the closure of snow-bound Robin Hood Airport in South Yorkshire in January 2010, tweeted “****! Robin Hood Airport is closed. You’ve got a week and a bit to get your **** together, otherwise I’m blowing the airport sky high!!”

Chambers was prosecuted under S127 (1) of the Communications Act 2003, for sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. He was convicted and fined.

The decision provoked a high profile campaign to have the conviction overturned, culminating in a successful appeal in July 2012.

Difficult judgment call

The tipping point for the DPP came in September last year, in the wake of a homophobic tweet about two Olympic divers, posted during Games. In the end, no prosecution was brought over the tweet, but the DPP highlighted the difficult judgment calls involved in dealing with such cases.

“In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained,” he said.

“But in many other cases a criminal prosecution will not be the appropriate response,” he added. “If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest.”

Guidelines

Three months later the DPP began consulting on draft guidelines, detailing the position that would be taken by the Crown Prosecution Service in relation to the prosecution of online communications.

The final guidelines have now been published. In very general terms, they provide that:

• Prosecutors may only proceed with a prosecution if there is enough evidence to give a reasonable prospect of conviction, and it is in the public interest to prosecute the case.
• In their initial assessment prosecutors must distinguish between cases that:
  • Constitute a credible threat of violence, constitute harassment or stalking or amount to a breach of a court order. These cases should be prosecuted robustly.
  • Communications which do not fall within those categories but which might be considered grossly offensive, indecent, obscene or false will be subject to a “high threshold” and in many cases prosecution is unlikely to be in the public interest.

“These are cases that can give rise to complex issues,” said Keir Starmer QC. “To avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it.”

The guidelines came into effect on 20 June.

Contact Lewis Nedas’ Criminal Lawyers in London

For specialist legal advice please contact our solicitors Jeffrey Lewis or Siobhain Egan on 020 7387 2032 or complete our online enquiry form here.

This blog post is intended as a news item only – no connection between Lewis Nedas and the parties concerned is intended or implied.