Prompted by an incident involving a derogatory Twitter message sent to diver Tom Daley during the Olympics, the Director of Public Prosecutions issued a statement on 20 September 2012 about CPS policy on social media prosecutions. In the statement he observed that: “[a]ccess to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions.”

In those few sentences he summed up the considerable difficulty that the authorities have in policing this rapidly expanding forum for communication, using legislative tools that generally speaking pre-date the advent of online social media. Within the same statement the DPP quoted a statistic that approximately 340 million Twitter messages are sent every day. Of course only a fraction of these are ones that the British police and the Crown Prosecution Service have any jurisdiction over, and of those only a very small part contain the necessary ingredients of being sufficiently offensive or discriminatory, menacing or threatening, to warrant investigation and potentially prosecution. Identifying those that are truly deserving of further action, and perhaps equally importantly, ensuring that the police and other authorities are not wasting their time on matters which ought never to come to trial, is therefore a real priority.

To date, the record of the police and the CPS has been mixed, to say the least. In the Tom Daley case the comments, by semi-professional footballer Daniel Thomas, related to Daley and his team-mate Pete Waterfield. They were homophobic in nature. Without in any way wishing to excuse or diminish the seriousness of such behaviour, it was also a fact that the comments were intended (however misguidedly) to be humorous. As is often the case in these situations, Mr Thomas seemingly had not recognised, or forgotten, that Twitter is a public forum, and that his observations would potentially reach (as they did) a far wider audience than he had intended them for. For that misjudgement he was arrested, and the CPS was asked to consider whether he should be prosecuted.

In the statement he has now made, the DPP quoted a comment by the European Court of Human Rights in the 1976 case of Handyside v UK. In that case, the ECtHR said that freedom of expression, includes the freedom to say things “that offend, shock or disturb the state or any sector of the population.” While jokes that resort to homophobia, racism or any other form of discrimination are to be deprecated, and will in all likelihood cause public opinion of the maker of the joke to be diminished, the importance of free speech as a principle requires that such expressions should not be sanctioned with criminal penalties. On the basis of the principles articulated nearly forty years ago by the ECtHR, and reaffirmed in the DPP’s recent statement, Mr Thomas should never have been arrested, and the possibility of his being charged ought never even to have been contemplated.

At least in that case, matters did not go any further. The case of Paul Chambers was rather more serious. There a young man, frustrated at not being able to return home to his girlfriend in Northern Ireland because his local airport was closed by snow, tweeted a message to his followers that the airport in question had just over a week to get its act together, or he was going to “blow the place sky high!”. This was in the context of other tweets jokingly referring to having to resort to terrorism in order to get home. None of his followers were concerned by the message. When the airport heard about it, several days later, they were not concerned, but their procedures required them to refer it to the police anyway, as a non-credible threat.

Somehow, however, the police ended up taking it far more seriously. Mr Chambers was arrested at his place of work (he was subsequently fired by his employer), charged with sending a “menacing communication”, tried and convicted to a period of imprisonment. He appealed and his appeal was rejected by the Crown Court. He appealed again and at last, in a judgment which did much to restore common sense to the field of social media prosecutions, a panel of three High Court judges determined that he ought never to have been prosecuted. Their decision turned on what ought to have been a relatively straightforward point that, for a message to be menacing, it must have been intended to have been menacing, and some readers of the message must actually have felt threatened. As in the case of Mr Thomas, the Court found that even if it was poorly judged, the message was a joke, and that the prosecution ought never to have been brought.  Some vindication then, at last, for Mr Chambers, but scant consolation for the two years of his life, and the loss of his job and, for a time, his liberty, that resulted from this heavy-handed interpretation of the law.

None of this is to say that there should not be consequences for people’s actions. As Mr Thomas, and indeed Kevin Pietersen in slightly different circumstances, have found – employers tend to take a dim view of professionals who express themselves in a way that is offensive or derogatory to others. For sportsmen, there is also the consideration that few major sponsors will want to associate themselves with people who hold views that the majority of the populace are likely to disapprove of. Similarly, where a statement is defamatory, there are remedies available to anyone whose reputation has been seriously injured by that publication. But criminal sanctions are the most severe and should be reserved for those cases in which the public interest in the matter being prosecuted outweighs the freedom of an individual to express themselves in a manner of their choosing.

Evelyn Beatrice Hall, in her 1906 biography of Voltaire, attributed a saying to him that was designed to demonstrate his views on the principle of free speech. “I disapprove of what you say, but I will defend to the death your right to say it.” As it struggles to get to grips with the new forums for self-expression that the internet and social media provide, the CPS will be publishing draft guidelines on the circumstances in which disapproval of a statement may not be enough, and criminal consequences ought to ensue. The publication of the draft guidelines will be followed by a period of extensive consultation, and that is a forum in which all of us should strongly consider making our opinions heard.