THE BLOG

Social Media and the Law: Know Where You Stand

21/02/2013 13:46 GMT | Updated 22/04/2013 10:12 BST

Twitter and Facebook and other social media are an incredibly powerful force for good. They give every man and woman a soap box and democratise man's ability to influence. Thanks to new media people can share ideas and information, articulate a message and communicate with people in high and faraway places.

"Sharing ideas and experience moves humanity forward."

- Medium

Real time social media communications have utterly flattened and revolutionized the ways of the world.

But with this incredible good has come a large measure of bad. The anonymous internet troll is now ubiquitous, the keyboard warrior is part of the daily rhythm and the anti-social social media user is common place.

Stories and anecdotes abound. The Twitter community was shocked and offended when a student sent grossly offensive and distasteful tweets about Fabrice Muamba. The Inbetweeners actress, Emily Atack who was threatened with death.

We've also heard about the #TwitterJokeTrial when Paul Chambers was arrested in 2010 for tweeting that he would blow up an airport. The over-enthusiastic action of the authorities quickly provoked a backlash and really drew out the question of when the law should step in.

Some instances of social media misuse are black and white and demand legal action. Social media cannot be allowed to degenerate into a lawless space where people harass and make credible threats against other users.

Other instances are hazy and uncertain. People have a right to be obscene and insulting and say things that are distasteful. Freedom of speech is a fundamental right enshrined in law by virtue of the Human Rights Act 1998 which brought Article 10 ECHR into British law. But at the same time, people cannot gratuitously harass, threaten or offend with impunity. There are some lines that just can't be crossed.

So the question stands: when can the police and the courts step in, hold people to account and prosecute?

This question was answered in December 19 2012 by the DPP for England and Wales, Keir Starmer QC when he published interim guidelines. The guidance document outlined the instances in which the police can make an arrest and prosecute a social media user.

So here's a breakdown of what you shouldn't do, unless that is you want to be arrested:

1. Make a credible threat of violence against persons or property

2. Maintain a campaign of harassment against someone which breaches the Protection from Harassment Act 1997

3. Break a court order i.e. research the past of defendant in court (trial by Google)

In these three instances the law is clear, security agencies will take robust action.

The fourth instance in which you can be arrested is a little more complicated. Like I said earlier, freedom of speech allows for people to be offensive, however that right is not absolute. People cannot say WHATEVER they like. There will be qualifications. So, take for example the Fabrice Muamba tweet incident. You can be offensive but not grossly offensive.

This is a matter of semantics and personal interpretation. The reality is the can be no total delineation between that which is offensive and grossly offensive can be drawn. The advice from Keir Starmer QC, does go some way to narrowing the level of uncertainty.

4. You can be arrested if your communications don't fall into one of the above, but if your communications are either:

i. grossly offensive

ii. grossly indecent

iii. grossly obscene

Such communications must be more than shocking, disturbing, distasteful, offensive, satirical or rude and more than just an unpopular or unfashionable opinion.

Keir Starmer QC has made it clear that the action of security forces must not have a "chilling effect on free speech", therefore the threshold for arrest and prosecution has been set high. Each case must be seen on its individual facts and merits, and context is everything.

As such, arrest and prosecution must be in the public interest. To ensure that this is met, the fourth category comes the following qualifications. If you are grossly offensive, indecent or obscene, you will not be prosecuted if:

a. You take swift action to remove original communication

b. The service providers such as Facebook and Twitter have taken swift action to remove offensive content

c. The original content was not intended for a wide audience

d. The communication did not go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds freedom of expression

These guidelines are not absolute or perfect, they remain open to interpretation. However Keir Starmer QC has gone some way to removing the uncertainty and inconsistency that has dogged police forces across Britain.

But the guidelines aren't simply useful for security forces. We the public should be minded to share the information. Bring the guidelines into the public domain, pass it onto educators and local schools, send it to community workers. Debate about free speech and what is and isn't acceptable.

The more we do to educate and inform ourselves the further we can go to making the online social media space a safer and more enjoyable place to socialise and do business.

In the mean why not take some time out and make your views and feelings known by filling out the public consultation document on the interim prosecution guidelines. You can access the document by clicking here, closing date for contributions is March 13 2013.