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Social Media Prosecutions: Why I Have Published Guidelines Today

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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.