On 19 December 2012, following a number of high profile cases involving prosecutions for comments made in social media, the Director of Public Prosecutions issued “Interim Guidelines on Prosecuting Cases Involving Communication Sent via Social Media”.

Since the conviction of Paul Chambers, many have campaigned hard for guidelines for prosecutors in relation to the use of social media to address concerns that prosecutions are appropriate and reserved solely for cases where comments are not merely offensive but cross the threshold of legality.

Article 10 of the European Convention on Human Rights protects the right to freedom of expression: this “includes not only speech which is well received and popular, but also speech which is offensive, shocking or disturbing” (Sunday Times v UK (number 2) [1992] 14 EH RR 123).  The threshold should be high to mount such a prosecution and following the Guidelines, it is likely that fewer prosecutions shall be brought for remarks made carelessly in social media.

In every case prosecuted by the CPS, the two-stage test must be met: there must be sufficient evidence to provide a realistic prospect of conviction; and a prosecution must be in the public interest.

Whilst the DPP anticipates there may be cases which satisfy the first limb of the test, there will be far fewer where the second is satisfied.  Identified within the guidelines are four types of conduct:

  1. “Communications which may constitute credible threats of violence to the person or damage to property;
  2. Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997 or which may constitute other offences, such as blackmail;
  3. Communications which may amount to a breach of a Court Order; and
  4. Communications which do not fall into any of the categories above and fall to be considered separately, i.e. those which may be considered grossly offensive, indecent, obscene or false.”

It is of no surprise that cases falling within paragraphs 1 to 3 should be prosecuted ‘robustly’.  Where offences are suspected the police are under a duty to investigate and where the test is met, prosecutions should follow.  It is not these type of cases that have been causing difficulties or where prosecutions, arguably lacking common sense, have been brought.  It is in those cases where comments made have not been credible, such as the case of Paul Chambers, or have been offensive, such as the case of Paul Taylor, but not grossly so.

Communications must be more than simply offensive to be contrary to the criminal law.  Prosecutors should only proceed with cases “where they are satisfied that the communication is question is more than offensive, shocking or disturbing; or satirical, iconoclastic or rude; 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”.  Only if the comment exceeds this test should a prosecutor consider whether a prosecution is required in the public interest.

According to the Guidelines a prosecution is unlikely to be both necessary and proportionate where:

  1. “a suspect has swiftly taken action to remove the communication or expressed genuine remorse;
  2. swift and effective action has been taken by others, for example, service providers, to remove the communication in question or otherwise block access to it; and
  3. 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 the communication in question, or the content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in open diverse society which upholds and respects freedom of expression”.

Additionally, special consideration should be given to messages posted by the under 18’s who may not appreciate the potential harm and seriousness of their communications and a prosecution is therefore rarely likely to be in the public interest.

Users of social media must be aware that whilst this guidance is sensible and should result in fewer prosecutions, prosecutions are not prohibited for comments made in social media.  If a complaint is made it will be determined on its merits and where one prosecutor draws the line another may have a different opinion.