DPP unveils guidance on social media prosecutions

Emphasis on freedom of speech

Director of Public Prosecutions (DPP) Keir Starmer has issued guidance for the CPS on when to initiate legal action against those who breach UK communications laws on social media.

The guidance comes after a number of prosecutions for statements made on social networks were regarded as over-zealous of insufficiently protective of free speech by the courts.

Section 127 of the Communications Act includes the offence of sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. Offensive, indecent and malicious communications which cause distress to the recipient are also an offense under the Malicious Communications Act 1988.

The DPP unveiling the guidance warned that a “high threshold” should be applied by prosecutors when assessing social media communications in order to account for the large volume of such communications and prevent the legal system being swamped with cases.

Prosecutors should only consider bringing cases against social media users “where they are satisfied there is sufficient evidence that the communication in question is more than: offensive, shocking or disturbing; or satirical, iconoclastic or rude comment; 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”.

All prosecutions must also meet the requirement that they are “required in the public interest”. Prosecutors will consider the harm suffered by individuals to whom a communication may have been targeted and also account for individuals’ rights to freedom of expression, the guidance says:

“A prosecution is unlikely to be both necessary and proportionate where: the suspect has expressed genuine remorse; swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it; 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 of the communication in question; or the content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.”

Under civil laws targets of online communications may have remedies under the Protection of Harassment Act 1997, or in privacy, libel or malicious falsehood.