Friday, 21 June 2013

CPS Publishes Full and Final Social Media Prosecution Guidelines

Social media users beware: you cannot tweet with impunity. Social media has made publishing vastly easier, but it has not made publishing responsibility free. And while the law was caught sleeping, it is now clear: the criminal and civil can come after you and hold you to account. Ignorance is no defense. So take note, read the guidelines, understand the law and inform friends and family and other social media users.

Before going into the detail of the black letter law I want to do a quick recap of the events which have led up to the publication, June 20 2013 of this new legal document. [Or you can just scroll to the bottom of the page where I have indented what the full and final guidelines have said which gives YOU what YOU really need to know.]
After a number of calamitous decisions to prosecute social media users, including the famous #TwitterJokeTrial, the Director of Public Prosecutions Keir Starmer QC announced October 11 2012 that he would initiate a process towards creating social media prosecution guidelines after prosecutors expressed uncertainty about the existing law.
On October 17 2012 Keir Starmer QC suggested that 'Facebook and Twitter could need new legislation'. Keir Starmer then announced November 13 2013 at an Index on Censorship panel discussion that the publication of the interim guidelines on social media prosecutions was only weeks away.
On December 19 2013 the interim guidelines on prosecuting social media misuse was published by the DPP which you can read here.
John Cooper QC took a dim view on the interim guidelines as you can see in the two tweets below:

Keir Starmer then slammed the comments made by John Cooper QC; but more broadly the interim guidelines were warmly received as you can see by the Inforrm blog here and the Index on Censorship here.
I produced a breakdown of the law as it was then in a post, 'Social Media and the Law: Know Where You Stand'.
On the same day the interim social media guidelines were published the CPS launched a public consultation. The purpose of which was 'to seek a range of views on the Interim Guidelines on prosecuting cases involving communications sent via Social Media.' The public consultation then closed March 13 2013 and you can see the original consultation document here.
On February 6 2013 Keir Starmer QC made some important comments at a Chatham House event entitled, 'Social Media, Free Speech and the Law'. Then on February 26 2013 Brian Wheeler wrote on the BBC website a comprehensive overview of the law in a piece entitled, 'Twitter users: A guide to the law'. Keir Starmer QC popped up again when on March 4 2013 the Index on Censorship published their interview with him here. Then March 7 2013 the BBC published a great article, 'Social media and the law: a case to regulate or educate?'
The public consultation on the Interim Social Media Prosecution Guidelines closed on March 13 and Keir Starmer later said of it:
"Encouragingly, the public consultation showed there is wide support for the overall approach set out in the guidelines, which state there should be a high threshold for prosecution in cases involving communications which may be considered grossly offensive, indecent, obscene or false."
On April 28 2013 Nicky Campbell on The Big Questions asked: 'Is social media out of control?'
On May 24 2013 the McAlpine-Bercow affair came to an end with the law ruling against Sally Bercow. The judgement made it clear that while the internet has made publishing easier, it has not made publishing responsibility free. Read more about the judgement and the import of the case here and here.
In response to the ruling against Sally Bercow David Aaronovitch rightly wrote in the Times that 'Twitter is inherently dangerous'.
On June 4 2013 the UK's top libel and media judge Lord Tugendhat handed down more law for social media users. This time clarifying how the law will handle social media users who breach court orders. You can read about that here.
Then on June 20 2013 the CPS published the social media guidelines in full here.
Prominent legal tweeter and respected human rights barrister Adam Wagner (@AdamWagner1) takes a firm view on free speech as guaranteed by Article 10 of the ECHR and remains unimpressed by the law's competence to prosecute persons for grossly offensive communications.

The barrister John Cooper QC who has been vocal throughout the process said the following on Twitter:

But here's what you need to know. You can get into trouble if:
1. You make a credible threat against a person or property
- Prosecutors will consider whether the offence is racially or religiously aggravated or whether there is aggravation related to disability, sexual orientation or transgender identity
2. You harass or stalk someone
- This part of the guidance has been beefed up and now requires greater detail
- Like above, prosecutors will consider whether the offence is racially or religiously aggravated or whether there is aggravation related to disability, sexual orientation or transgender identity
3. Breach a court order
4. You make a communication that is grossly offensive, indecent, obscene or false
- The guidelines have been amended to make clear that prosecutors should particularly consider whether there is a hate crime element to the communication, when assessing the impact on the victim
It must be made clear that the drafters of this full and final guidance document have made efforts to protect the long held principles of free speech by setting a high threshold at the evidential stage; and so prosecutors will take care to measure each case on its unique merits before moving to the court stage. Any communication would have to be more than "offensive, shocking or disturbing."
The full and final guidelines also incorporates an excerpt and principles of the ruling from the #TwitterJokeTrial as below:
"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]."
The guidelines make attempt to clarify how prosecutors approach concept of gross offensiveness by citing former caselaw:
"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."
And this is Important. A prosecution is unlikely if:
- You express genuine remorse*
- You or the service provider take swift and effective action to remove the communication in question or block access to it
- Your communication was not intended for a wide audience
- The content of your 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
There are another few points to make note of:
- Your age will be taken into account and the age and maturity of any wrongdoer should be given great weight.
- Their must also be a public interest for any prosecution
The guidelines take effect from June 20 2013.
Right from the outset of this process beginning on October 11 2012 Keir Starmer QC committed himself and his team to bring certainty to social media and to create new law where necessary with the ultimate goal of reaching a balance between upholding free speech and upholding the rule of law.
Over eight months later it's clear that Keir Starmer QC has stuck to this commitment and has created new soft law in the form of guidance that is timely and of great benefit to the public.
However, to my mind this has actually been the easy bit. The hard part lies ahead. As Leo Tolstoy said in War and Peace:
"Writing laws is easy, but governing is difficult."

DPP guidance in full here. This blog post originally appeared in The Huffington Post here.

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