Director of Public Prosecutions Keir Starmer QC has issued his final guidelines on when prosecutions should be brought against those who have made supposedly unlawful posts on social media.
The number of such cases has been on the rise over the last couple of years, and a number of high-profile incidents have received mainstream media attention, including the arrest of a 19-year old for posting a picture of a burning poppy on facebook on Remembrance Sunday, and a man who was arrested for posting a crudely homophobic tweet about Olympic diver Tom Daley.
The most high-profile of cases was that of Chambers v DPP, which arose after the defendant jokingly tweeted:
“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!”
He was originally convicted, and lost his appeal in the Court of Appeal but finally had the conviction overturned by the High Court, resulting in significant embarrassment for the CPS but at the cost of significant anguish and financial loss to Mr. Chambers, who lost his job and had his reputation destroyed.
This and other such social media prosecutions have all rested on s.127 Communications Act 2003, which makes it an offence to:
“[send] 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”.
This offence has stirred up a great deal of controversy among legal commentators and proponents of free speech alike. It was pointed out in this fascinating post on the Charles Russell Critique blog that the statutory provision could be traced back to the s.10(2) Post Office (Amendment) Act 1935:
“originally drafted to give protection to Post Office staff, particularly female telephonists subject to improper or obscene telephone calls….there is the basis for an argument that the original intent of section 10(2)(a) has been corrupted during the number of re-enactments of this provision.”
Essentially this was an ancient law which through improper re-drafting over the years had been expanded so widely in its scope that it could be applied to a technology that could not have been dreamed of by the lawmakers of the 1930s whom enacted it.
The new guidelines – identifying the correct offence & “high threshold”
The new guidelines aim to bring clarity as to when criminal charges should actually be brought for communications made via social media such as tweets and facebook posts, both under s.127 Communications Act 2003 and s.1 Malicious Communications Act 1988.
The guidelines create four distinct categories, within which would-be offences may fall. The first category is that of “credible threats of violence or damage”. This potentially encompasses communications which could amount to a “threat to kill” under s.16 Offences Against the Person Act 1861 or “putting people in fear of violence” under s.4 Protection from Harassment Act 1997. The guidelines recognise that such a communication may theoretically also fall foul of s.127 CA or s.1 MCA, but under the Chambers case will not do so if it “…does not create fear or apprehension in those to whom it is communicated…for the simple reason that the message lacks menace.”
The second category is for communications which target specific individuals and amount to harassment under s.1 PHA 1997. This could include stalking or a series of unwanted communications.
Thirdly is communications which breach a court order – for example contempt of court offences or the identification of a victim of sexual offence. The guidelines leave it to whichever legislation in question has been breached to determine what action prosecutors should take.
Finally, the fourth category encompasses communications which are grossly offensive, obscene, indecent or false – those which will fall within the scope of s.127 CA and/or s.1 MCA and which have been causing such a stir. It is this category in particular which the DPP seeks to clarify with these guidelines.
Encouragingly, the DPP has concluded that there is a “high threshold” that must be crossed in order for a prosecution, recognising the potential for a chilling effect on free speech. He points out in the guidelines the relevance of Art.10 ECHR, citing the case of Sunday Times v UK :
“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 as to those that offend, shock or disturb …”
The Lord Chief Justice’s approach in Chambers is also cited:
“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [s.127].”
Under the guidelines mere offensiveness is not sufficient to warrant a prosecution. Communications which are in “bad taste, controversial or unpopular, and may cause offence to individuals or a specific community” will not be sufficient; the communication must be “grossly offensive”. Prosecutors must also be mindful of context, recognising that “Banter, jokes and offensive comments are commonplace and often spontaneous. Communications intended for a few may reach millions”. As such, communications must be 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.”
Furthermore, prosecutors must also be satisfied that it would be in the public interest to actually prosecute, as well as both necessary and proportionate due to the potential for interference with Art.10 ECHR. The guidelines offer a non-exhaustive list of circumstances under which prosecution is unlikely to be necessary and proportionate:
- “The suspect has expressed genuine remorse;
- Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
- 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
- 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 suspects should be taken into account, as well as the impact on the victim where the communication was made to a particular individual. Prosecutors should also have particular regard for any motivations relating to race, religion, disability, sexual orientation or transgender identity.
The guidelines clearly represent a move towards a common sense approach to this relatively novel area of criminal law. It is of course regrettable that it has taken this long – and John Cooper QC, who represented Paul Chambers has slated the guidelines, and upon reading them in their interim form tweeted simply,
“…sad that ‘common sense’ takes 25 pages to explain.”
Clearly the guidelines do not represent any sort of dramatic shift in the legal landscape. s.127 CA and s.1 MCA both remain very much in force, and twitter users are not now immune from prosecution, free to insult and offend however they wish. Perhaps we would be better off if the Courts did not have to act as arbiters of good taste, determining what is and is not “grossly offensive”.
Nevertheless, it is encouraging to see that the government is seeing sense. The guidelines rightly distinguish between genuinely threatening communications which can amount to assault or harassment under well-established criminal laws, and comments which are casually or carelessly made, even if they are somewhat objectionable or distasteful to some. They also rightly leave scope for letting trolls off the hook if they remove the post or apologise, or if the post ended up being read by a wider audience than had reasonably been anticipated.
There has been growing frustration and outrage over state intrusion into what we can and cannot say in public spaces (both online and in the real world). When viewed alongside the decision to remove mere “insults” from the scope of s.5 Public Order Act 1986 , the DPP’s attempt to rein in unjustified prosecutions would certainly suggest that we are moving in the right direction.