Crown Prosecution Service guidelines proposed today for the prosecution of cases involving communications sent via social media sites such as Twitter will give more latitude to offensive and satirical comment, the director of public prosecutions Keir Starmer QC said.
The guidelines require prosecutors to distinguish between 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.
Offences falling within the first three categories should ‘be prosecuted robustly under the relevant legislation’, such as the Protection from Harassment Act.
However the cases which fall within the final category will be subject to a high threshold, Starmer (pictured) said.
‘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 prosecutors that they should take action under the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 only where they are satisfied that the communication in question is more than, offensive, shocking, satirical or the expression of unpopular or unfashionable opinion, even if distasteful to some.
‘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,’ the guidelines propose.
Commenting, Jonathan Snade, partner at Manches, said: ‘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.
‘In the case of that latter category, the CPS has highlighted the need for prosecutors to have regard to the right to freedom of speech under Article 10 of the European Convention on Human Rights and also, on a more practical level, the fact that hundreds of millions of communications are made via social media each month.
‘Therefore if a communication is merely offensive, indecent, unpopular or shocking, then, absent any evidence of threat of violence, harassment or blackmail etc, prosecutors are warned to exercise "considerable caution" and to satisfy themselves of a high degree of public interest, before prosecuting.
‘The guidelines say that each case must be considered on its own facts and merits - and states that there is unlikely to be sufficient public interest if the communication was swiftly removed from the relevant social media sites, or if the suspect is under 18.’
A public consultation on the guidelines closes on 13 March.