The DPP has published interim guidelines to combat the recent spate of cases involving offensive remarks on social media. The guidelines seek to clarify the basis upon which prosecutions will be brought under the Communications Act 2003, specifically section 127. The Director of Public Prosecutions, Keir Starmer QC has stated:
"These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.”
The interim guidelines have introduced a new threshold for prosecution. They also clarify the instances when the DPP will prosecute and those when prosecution is unlikely. The higher threshold is hoped to prevent a repeat of the recent “Twitter Joke Trial” of Paul Chambers who had jokingly threatened to blow up Robin Hood Airport. The trial lasted two years, and with the decision overturned at appeal it is regarded as having been a heavy handed approach by the DPP to controlling social media communications.
The guidelines state that prosecution will be sought where a credible violent threat has been issued, a campaign of harassment has occurred such as ‘trolling’, a tweet has breached a court order, (for example but naming a person involved in anonymous proceedings), or finally where the DPP are satisfied that the communication in question is grossly offensive (more than offensive, shocking or disturbing). The concern of course is the subjective nature of such decisions. The DPP has reiterated that any and all decisions relating to prosecution will still be subject to the public interest test of being necessary and proportionate.
The guidelines also propose when prosecutions are unlikely to be sought. In particular; (i) where someone under the age of 18 is the author of the offending tweet and (ii) where an offensive tweet is published but deleted and taken down quickly. Access to such communications will impact on whether a prosecution will be sought. Administrators of websites will also have to act to inhibit further access.
These interim guidelines should usher in greater consistency for the Crown Prosecution Service in their approach to dealing with credible threats and offensive communications (that are occurring with increasing frequency) whilst at the same time preserving freedom of expression for users of all social media platforms.