In the Media

High threshold for offensive social media prosecutions

PUBLISHED December 19, 2012

Wednesday 19 December 2012 by Michael Cross

Crown Prosecution Service guidelines proposed today for the prosecution of cases involving communications sent via social media sites such as Twitter will give more latitude to offensive and satirical comment, the director of public prosecutions Keir Starmer QC said.

The guidelines require prosecutors to distinguish between communications that may constitute credible threats of violence, harassment or stalking or may amount to a breach of a court order, and those that are grossly offensive, indecent, obscene or false.

Offences falling within the first three categories should 'be prosecuted robustly under the relevant legislation', such as the Protection from Harassment Act.

However the cases which fall within the final category will be subject to a high threshold, Starmer (pictured) said.

'A prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression,' he said.

The guidelines remind prosecutors that they should take action under the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 only where they are satisfied that the communication in question is more than, offensive, shocking, satirical or the expression of unpopular or unfashionable opinion, even if distasteful to some.

'In line with the free-speech principles in Article 10, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate,' the guidelines propose.

A public consultation on the guidelines closes on 13 March.