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On 19th December 2012, the Director of Public Prosecutions issued long awaited interim guidelines for prosecutors relating to communications made on social media platforms such as Twitter and Facebook. The interim guidelines are effective immediately but are under public consultation until March 2013.
The introduction of the guidelines could not come too soon; a freedom of information request made at the end of 2012 showed that in the months up to November of that year there were 4,908 reported crimes in which social media played a key part. Contrast this with the figure in 2008 where the number was nearer 500.
The interim guidelines are likely to bring some much-needed stability in circumstances where recent high-profile decisions have brought this modern form of communication into the spotlight. Many will need no introduction to Paul Chambers who won an appeal against his conviction for tweeting in jest that he was going to blow up an airport if it didn't open in time for a flight he had booked. In another case, charges were dropped against Daniel Thomas for tweeting homophobic comments about the diver Tom Daley. This case prompted the DPP to issue a statement with the reasons for the decision and asking for an open debate about the handling of social media offences. In this regard, the case may have been a key trigger in the current consultation.
As will be seen, the interim guidelines proposed in the consultation inject a good degree of common sense and we should see a reduction in the number of charges brought for tweets which might be offensive or distasteful but no more. In theory, prosecutions should now only be brought for the more serious cases.
Although primarily of interest to everyday users of social media (including, presumably, celebrities who are often on the receiving end of abusive messages), the interim guidelines are relevant in a business context for a number of reasons. Firstly, organisations that may, as part of their work, post messages that some sections of society might find offensive (for example, campaign or lobbying groups) will want to know where they stand in relation to communications which some people may find offensive or distasteful. Secondly, the guidelines will be useful for any person tasked with creating and monitoring a company's social media usage policy for employees. Thirdly, business leaders in any industry should keep a watching brief on developments in this field as it is a changing landscape and is likely to be the subject of considerable scrutiny over the next few years.
In the interim guidelines, the DPP reiterates the long-standing general principles that apply to prosecutors when considering any prosecution. The first principle is that there must be enough evidence to provide a realistic prospect of a conviction. In the vast majority of social media cases, this will be easy to satisfy provided the police are able to identify the person who has made the communication. In many cases, the person will use their own name and will be easy to track. Matters are made harder, however, in cases where fake names or pseudonyms are used. In such an instance the police would need to use their powers to force the social media platform or internet service provider to obtain either the registered name and address of the person or, if those details are false, an IP address which would at least enable the police to locate the computer used to make the offending communication.
The second general principle is that the prosecution must be in the public interest. Although the DPP is keen to stress that each case should be looked at on its merits, the point is made that prosecutors may choose to take matters no further if they consider early on that a prosecution is not in the public interest.
The remainder of the document provides some clues as to what is not likely to be considered in the public interest. A distinction is made between four potential types of communication:
1. A credible threat of violence to the person or property.
2. The targeting of a specific individual or group of individuals which may constitute harassment or blackmail, for example.
3. A communication which may breach a court order (for example, the recent rape case involving the League One footballer Ched Evans, where a number of people named the victim publicly on Twitter).
4. Anything not falling into the categories above but which might be grossly offensive, indecent, obscene or false.
Many people will be relieved to hear that the DPP distinguishes the final category from the preceding three categories on the grounds of freedom of speech. The interim guidelines state that in most cases there will be no public interest in bringing a prosecution and a high threshold is to be applied. In giving reasons, the following passage of a judgment of the European Court of Human Rights (Sunday Times v UK (No 2)  14 EHRR 123) is quoted:
‘Freedom of expression constitutes one of the essential foundations of a democratic society... it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb ...'
The principle of freedom of speech seems to underpin the interim guidelines and this sends a clear message that social media users will safely be able to air their views without worrying that they may be prosecuted. Organisations whose views may be offensive to sections of the public will feel reassured that they can continue their activities without fear of prosecution. In a democratic society, this must be welcomed, even if it means that we must continue to put up with the ‘trolls' who deliberately attempt to disrupt and cause offence.
What effect the interim guidelines (and the final guidelines issued after the consultation) will have on the prosecution figures for 2013 and beyond remains to be seen. As mentioned above, it is likely that fewer cases will be brought, and the Crown Prosecution Service will focus their attention on the more serious offences. This will ensure that resources are appropriately allocated and mean that, in the words of the Chairman of the Communications Advisory Group for the Association of Chief Police Officers, each police force will not need a dedicated ‘Twitter Squad'. However, usage of social media networking continues to grow and along with it the risk of an increase in social media related offences.
Jon English can be contacted on email@example.com
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