The integration of social media into our day-to-day lives is now well-established.
With the news last week that the Pope had sent his first tweet, it is clear that social media has become an important method by which so many of us communicate with our friends, contacts and outside world.
Where technology evolves and develops, often at a rapid pace, society must also adapt - and social media seems to reflect the best and worst of our society. So, for the Crown Prosecution Service, this means readying our prosecutors for difficult and complex judgement calls on the front-line. This is why I have today published new, interim guidelines on cases involving communications sent via social media.
In these, I have drawn a clear distinction between those cases that constitute a credible threat of violence, stalking, harassment or a breach of a court order - clearly requiring robust prosecution in the public interest - and those cases characterised as unpopular, or even very offensive comments, which often will not.
Those communications that fall within the first category should be prosecuted robustly, in accordance with the Code for Crown Prosecutors.
However, where communications do not fall within this category, prosecutors are faced with the more complicated task of considering whether they are grossly offensive, indecent, obscene or false under section 127 of the Communications Act (2003) or section 1 of the Malicious Communications Act (1988).
The new guidelines, on which we are publicly consulting, are designed to clarify the CPS's approach to cases of this nature, which have understandably generated significant public interest in recent months.
It is perhaps worth remembering that the Communications Act was originally drafted in 1935, to protect telephone operator staff from abuse. Through various re-enactments its reach has extended from telephones to all those using the internet.
Whatever view one may take on the reach of the criminal law, the CPS must decide whether or not to bring charges against an individual who may have committed an offence under the law as it stands, which is why the new guidelines are so important - they are designed to ensure a consistency of approach to such decisions across the CPS.
Particularly, the guidelines make it clear to prosecutors that the decision of whether to prosecute under section 127 of the Communications Act or section 1 of the Malicious Communications Act must be consistent with the fundamental right to freedom of speech. If we are to protect this essential right, then the threshold for prosecution must be high.
The well established right to freedom of expression covers not only speech which is well-received and popular, but also that which is offensive, shocking or disturbing. Just because content in a communication is in bad taste, controversial or unpopular, and may cause offences to individuals or a specific community, that is not in itself sufficient reason to put someone through the court process.
Only where content is so grossly offensive that it can be considered well over the line - beyond that which is tolerable in an open and diverse society - should prosecutors consider bringing charges.
There are a number of other important factors that make a prosecution unlikely in the public interest, including swift action to take down the offending message, the intention of the sender and their age and maturity. Prosecutions should be a proportionate response not an automatic response.
The guidelines also recognise that children may not appreciate the potential harm and seriousness of their actions and this must be a consideration when deciding if it would it be in the public interest to prosecute them.
That is not to say that the guidelines will now provide immunity from prosecution for anyone who removes their tweet or post quickly, or claims that they didn't mean for everyone to see it. Rather, they identify a number of important considerations for prosecutors to think about when looking at this type of case.
We are, of course, consulting publicly on the guidelines and I hope that the substantial public interest in this issue will generate a high number of responses from interested parties.
The guidelines make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.
The public consultation on the new guidelines is launched today and will be available on the CPS website until 13 March 2013.
Follow Keir Starmer QC on Twitter: www.twitter.com/@cpsuk
Tolerable to whom? ... Gross,Open and diverse by what measures?
In an 'open and diverse' society, this is not something to be determined by criminal law. Putting people in prison for something they say because it's 'offensive' (and prefixing that with 'grossly' doesn't make any difference) is a very good way of promoting a polarised population and undermining the authority of law.
This chap Starmer and his associates need to have an eye kept on them. They're dangerous. Far more dangerous than those they seek to criminalize for being 'grossly offensive'. We're already over criminalized in this country and this attitude of entitlement prolific within Starmer's community is just going to make things much worse.
What's funny though is that by criminalizing certain comments, he's just going to make them far more popular.
With all due respect, your office should be investigating Atos Healthcare UK and Liverpool Care Pathway. The plight of the sick, disabled, and elderly demands your attention.
Samuel Miller
http://socialwelfareunion.org/archives/2501
http://you.38degrees.org.uk/petitions/letter-to-the-icc-at-the-hague-re-mistreatment-of-the-disabled-and-sick
http://mikesivier.wordpress.com/tag/the-hague/
http://mikesivier.wordpress.com/2012/11/25/ids-off-the-hook-with-icc-so-evidence-needed-of-atos-deaths/
E-Mail: disabilityinliterature@gmail.com
Blog: Hephaestus: Disability Studies
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(Montreal, Canada)
"In these, I have drawn a clear distinction between those cases that constitute a credible threat of violence, stalking, harassment or a breach of a court order - clearly requiring robust prosecution in the public interest - and those cases characterised as unpopular, or even very offensive comments, which often will not."
Doesn't mention the idea of someone making a joke - ok the joke might be in bad taste, but that surely doesn't always require a custodial sentence, does it? We all remember the guy who made an unwise tweet about a how he'd bomb an airport after being p'd off by airport staff - he got dragged before the bill only for the sentence to be (quite rightly) quashed later on. Net result - harassed member of the public and a large bill for the tax payer. Trebles all round!
I know of a case involving someone very close who was harassed, threatened and terrified, despite having court orders in place.
The police's response was like a broken record, you know he's done it, we know he's done it but we can't prove it. He says he wasn't at the computer at the time, he left his phone unattended and unlocked. The excuses just kept coming.
Sad truth is, the police don't care, nor do the CPS and when it comes to the out of hours CPS making a decision your even less likely to get anywhere and the type of people this law is going to be aimed at will already be well aware of that.
Nothing seems to be in the public interest anymore unless it involves someone who may grab a headline.
Considering the nature of possible responses relating to recent events in that arena. Lets pray someone is policing replies.
“society must also adapt “
Burning books was one thing. Mangling mobiles is a whole new ballgame.
“social media seems to reflect the best and worst of our society”
One way becoming two, was ever likely to be accompanied by some birth pangs.
“to protect telephone operator staff from abuse”
Might it not make sense to have regulatory bodies that fulfil the function for which they were presumably created? Or else have regulators of the regulators? When institutions revise an axiom to imply that the customer is always wrong. Or that processing complaints can be delayed until a client gives up. Isn’t that a form of incitement?
“the reach of the criminal law”
Why is it that the long arm of the law appears able to reach into some corners? While simultaneously seeming to have withered away to nothing, in other sectors. Is the intent to make such contrasts between the two disappear from view?
“should prosecutors consider bringing charges.”
Given that such notions as Christianity where amplified by attempts to suppress them. Isn’t the potential for a counter-productive outcome a real reality?
“important considerations for prosecutors to think about “
Publicising an incident may act as an additional deterrent, if the public agree with the evaluation made. Preventing publication of incidents, then having the public find out, might be equally fraught.
The Law of the Land is clear: Unless we harm, or injure someone, cause them loss or damage to their property, act dishonestly in our dealings, cause a breach of the peace, or act in mischief, we can say what the Devil we like. I did not lose my father on the battlefields of Crete to see the freedoms he and a million others fought and died for erased by an unelected government puppet.
Unless, our utterances cause one of the Common Law offences above, which must be proved to have happened, you are whistling in the wind, trying it on.
The CPS denies access to justice, and our freedoms under the law, it should be scrapped.