The Director of Public Prosecutions, Kier Starmer QC, yesterday unveiled a set of interim guidelines which aim to give the CPS more clarity when assessing whether offensive posts made online should be pursued by the courts.

The guidelines, effective immediately, follow a period of consultation with Twitter, Facebook, Liberty, police, regulators, lawyers, academics, journalists and bloggers, and are now subject to a wider public consultation which runs until 13 March 2013.

Section 127 of the Communications Act 2003 currently prohibits electronic communications which are "grossly offensive or of an indecent, obscene or menacing character". Clarity has been sought following several high profile cases such as that of Paul Chambers who in 2010 joked via Twitter that he would blow up Doncaster airport due to delays caused by heavy snow. Mr Chambers' initial conviction was overturned by the Lord Chief Justice who ruled that the tweet did not amount to a serious threat.

Initial Assessment

Prosecutors will now be required to categorise cases into those which i) constitute credible threats of violence; ii) constitute harassment or stalking; iii) may amount to a breach of a court order; or iv) do not fall into any of the above, but may be considered grossly offensive, indecent, obscene or false.

Those cases which fall under any of the first three categories should generally be pursued "robustly" by the courts under the relevant legislation. For those cases which come under the final category, prosecutors will be obliged to subject every case to a high threshold test which partly seeks to assess whether or not pursuing the case would be in the public interest.

The High Threshold and the Public Interest Test

As to whether or not a case would be in the public interest, the guidance states that bringing a prosecution must be shown to be both necessary and proportionate. This test is unlikely to be met in circumstances where:

  • the suspect or a service provider has taken action to remove the content promptly or issued an apology;
  • the communication was not intended for a wide audience or the intended audience did not include the victim or target; or
  • the content of the message did not exceed what could "conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression".

The guidance also places importance on the age and maturity of the suspect; prosecutions of children will very rarely be in the public interest. Prosecutors are advised that the communication in question must be more than offensive, shocking or the expression of unpopular or unfashionable opinion - even if distasteful to some or painful to those subjected to it.

Commenting yesterday, Kier Starmer QC said "I would now encourage everyone with an interest in this matter to give us their views by responding to the public consultation." 

It remains to be seen what effect the guidelines will have on the volume or nature of cases brought before the courts. Until a clearer picture emerges, users of social media are well advised to exercise significant caution before posting controversial content.