On 27 July 2012, the High Court handed down judgment in the case of Paul Chambers, the man prosecuted for tweeting that he was ‘going to blow up the Robin Hood airport’.   The decision to prosecute him under the Communications Act 2003 had led to widespread condemnation of the Crown Prosecution Service (CPS).

On the same day I wrote a blog on this website stating that it would be interesting to see the response of the CPS and Police should similar circumstances arise.  Just three days later, Daniel Thomas, a semi-professional footballer, posted what has been described as a ‘homophobic message’ regarding Tom Daley and Peter Waterfield on Twitter.  This message was disseminated further and found its way into the media.  Daniel Thomas was arrested and bailed pending a CPS decision on charge.

After considering the circumstances and context in which the message was sent, a detailed explanation of which is provided in the statement issued by the Director of Public Prosecutions today, the CPS has determined that no charges will be brought against Mr Thomas.

Mr Starmer has explained that although there is no doubt that the message was ‘offensive’   and would be regarded as so by ‘reasonable members of society’ this is not the test to bring proceedings under the Act.  The Crown Prosecution Service must be able to prove beyond a reasonable doubt that the message was ‘so grossly offensive that criminal charges should be brought’.  To make this determination the context and circumstances must be taken into consideration.  The DPP in his public statement reminds us of the need to balance the right to freedom of expression and the need to bring prosecutions for ‘serious wrongdoings’.   A person has the right to say things “…that offend, shock or disturb the state or any sector of the population.”  (Handyside v UK (1976)).  This will continue to be a grey area, but the DPP has clarified that criminal prosecutions may be appropriate where conduct 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’.

This further case should serve as a warning to the tweeting public that once a message is published they have limited control over who may see it or how much further it will be distributed.   As Paul Chambers and now Mr Thomas have discovered to their detriment you never know who will see your posts or whether the police will come knocking.

Preliminary guidance is now to be issued to prosecutors to deal with prosecutions in this developing and challenging area of social media.  A welcome public consultation on the issues will then occur with final guidance to be published.  Until that Final Guidance is published,  the CPS must heed the warning in the DPP’s public statement that ‘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’.