Social media in the dock: UK revamps offensive comment policy

The “Guidelines on prosecuting cases involving communications sent via social media”, which go into effect in the UK as of today, cover the areas a prosecutor should consider when asked for a charging decision by police, or reviewing already charged cases. Replacing interim guidelines hurriedly put into place by the Crown Prosecution Service (CPS), they apply not only to the original author of the message but, it’s made clear, to those re-sending that message, such as by retweeting it on Twitter, or resharing it on Facebook.

Three key areas are cited: credible threats of violence or damage to property; harassment or stalking that specifically target individuals; and breach of a court order. A fourth category, where communications are believed to be “grossly offensive, indecent, obscene or false”, comes under a more stringent grade of consideration, to deem whether they meet the high threshold of being in the public interest to prosecute.

“These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it” Keir Starmer QC, Director of Public Prosecutions, CPS

In short, the guidelines say, the communications under investigation should be more than just “offensive, shocking or disturbing”, or a “satirical, iconoclastic or rude comment”, or an “unpopular or unfashionable opinion about serious or trivial matters, or banter or humor”. Notably, the latter is said to hold even if the comment proves “distasteful to some or painful to those subjected to it.”

Cases where social media users have been prosecuted for what they argue are satirical or baseless threats have made headlines over the past few years. In 2012, the British High Court in London squashed the conviction of a man who had been found guilty in 2010 of “menacing electronic communication” after tweeting that he would blow up an airport. The controversial message – which Paul Chambers referred to as a “silly joke” – was described by the High Court judgement as clearly not menacing.

However, the lighter touch espoused by the new guidelines doesn’t mean that social media can be a free-for-all. Situations where individuals or companies are specifically threatened, for instance, will still more than likely lead to prosecution.