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04 Mar 2013

On trial for tweeting? A new approach to prosecuting offences committed via social media

The CPS is in the process of changing the way it deals with the prosecution of individuals suspected of committing offences via communications on social media. New interim guidelines which lay out how the CPS should approach such offences are currently out for public consultation with the clear aim of decreasing the number of prosecutions for social media offences.

The background to this debate will be familiar to many. A range of controversial prosecutions, brought for offences committed via Facebook or Twitter, have given rise to the suggestion that offences which were drafted in a pre-social media era may now be too easily committed by individuals who do not realise that they are breaking the law. The most high-profile example is the case of Paul Chambers, whose tweet in 2010 about blowing up his local airport led to his arrest and conviction. Only in July 2012 was he finally cleared of any wrongdoing. This has led many commentators to question the wisdom of the CPS putting valuable resources into prosecuting crimes of this nature. The interim guidelines take on board these concerns.

The guidelines seek to draw a distinction between, on the one hand, communications which constitute credible threats of violence; are specifically targeted at an individual or are in breach of a court order, and on the other hand, those which are grossly offensive, indecent, obscene, or false. The latter category has the potential to fall foul of section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003. The guidelines state that “there is a high threshold that must be met before criminal proceedings are brought and in many cases a prosecution is unlikely to be required in the public interest”. Taking the two-stage test from the Code for Crown Prosecutors, the guidelines develop both stages to address the specific issues arising in the context of social media.

The threshold in the guidelines will not be met if the communication is merely offensive, disturbing, rude comment, unpopular opinion, or distasteful humour. As such, only the most seriously offensive or obscene tweets would ever reach the necessary threshold. This clarification is clearly designed to stop the vast majority of jokes, such as those made by Paul Chambers, from even being considered for prosecution.

Regarding public interest, the guidelines attempt to limit the number of cases which will pass this test by outlining several specific circumstances in which prosecution is “unlikely to be both necessary and proportionate”. The most interesting of these include the swift removal of the offending communication, expressing genuine remorse (usually a factor in mitigation rather than a reason not to prosecute), and a lack of intention for the communication to be seen by a wide audience. In addition, the prosecution of children for these offences is “rarely” going to be in the public interest. By inserting these specific factors into the public interest consideration, the DPP has taken a pragmatic view of the unusual status of social media communications. Only on Twitter, for example, could a passing comment meant for a couple of friends end up being viewed by millions of individuals. Similarly, previous laws have had no reason to deal with the impact of removal of the offending comment, as for other methods of communication, such as email, it is simply not a possibility.

These interim guidelines clearly represent a step forward in the CPS’s approach to avoiding unnecessary prosecutions in the age of social media. Despite this, they do not amount to a green light for people to say whatever they want online. Those who breach injunctions, reveal the identity of rape victims, or send specific threats over social media sites will remain liable to prosecution. However, the majority of tweeters can breathe a little easier in the knowledge that a passing joke is now less likely to land them in trouble with the law.

Corker Binning is a law firm which specialises in business crime, regulatory litigation and general criminal work of all types. To speak to one of our criminal defence lawyers, call us on 0207 353 6000.

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