Twitter has been the source of a fair bit of controversy recently. First there was the tweet sent by Paul Chambers which led to the infamous Twitter Joke trial, then teenager Paris Brown was thrown into the spotlight for tweeting some rather unsavoury remarks about sex and drugs.
In light of the above use, or misuse, of social media, the Crown Prosecution Service have issued new guidelines on prosecuting cases involving communications sent via social media. Such communications can include Twitter tweets, Facebook posts and potential anything else posted on the internet. The two-stage test in the Code for Crown Prosecutors continues to apply, but there are now additional guidelines to be followed.
New Guidelines: 4 categories
The CPS has said that an initial assessment of the content of the communications should be made to distinguish between:
1. Communications which may constitute credible threats of violence to the person or damage to property.
2. Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
3. Communications which may amount to a breach of a court order.
4. Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.
The guidance states that communications falling within paragraphs 1, 2 and 3 above should be prosecuted, providing they satisfy the two-stage test set out in the Code for Crown Prosecutors. However, the guidance suggests that it may not be in the public interest to prosecute cases which fall into paragraph 4.
In the document, the CPS have provided guidance on what is deemed to fall within paragraphs 1-4, above.
The need for caution
The document also expresses the need for caution in prosecuting these types of offences, stating that there is the potential for a “chilling effect” on free speech. It highlights the case of Paul Chambers, where the Lord Chief Justice stated:
“… a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a)], for the simple reason that the message lacks menace.…Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003].“
It also highlights Art.10 of the European Convention on Human Rights:
“Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …“
As well as the case of Sunday Times v UK (No 2)  14 EHRR 123:
“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 …“
And the case of DPP v Collins  UKHL 40:
“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.“
The document also details the public interest test in deciding whether to prosecute. It confirms that a prosecution is unlikely to be both necessary and proportionate where:
1. The suspect has expressed genuine remorse;
2. Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
3. The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or
4. The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.
It also touches upon the potential prosecutions of young people, and how prosecutions of such individuals will not usually be in the public interest.
The full document can be found here. It’s in force from today, 20 June 2013.
We hope that this guidance will ensure a proportionate, measured response to communication sent via the likes of Twitter. Watch this space to see what effect, if any, it has.