The Crown Prosecution Service (CPS) has published interim guidelines on when it is appropriate to prosecute people for communications they send on social media. If the objective was a return to common sense policing, issuing twenty-five pages of guidance has risked complicating the situation even more.
The necessity for the communication to be ‘grossly offensive’ or ‘obscene’ for a prosecution to be made is highlighted within the guidelines. However, there remains an urgent need to reform laws that pose a serious risk to freedom of speech after several ludicrous prosecutions in recent months.
The guidelines seek to define ‘grossly offensive’ as cases which are more than: offensive, shocking or disturbing; satirical, iconoclastic or rude comments; the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to is. However, the bigger issue will be in attempting to interpret what constitutes ‘more than’.
One seemingly sensible part of the guidelines is ensuring that the actions taken after a communication has been made is acknowledged. It is suggested that a prosecution is unlikely to be necessary and proportionate where: the communication is quickly removed or remorse is expressed; service providers remove the communication or block it; the communication was not intended for a wide audience, nor was it intended to target the victim of the communication.
It is also important to recognise that the legislation, on which these guidelines are based, was designed for a completely different purpose but now allows the CPS the right to police comments made on social media. To put this into context, the Communications Act 2003 was introduced before the launch of Facebook in 2004 and Twitter in 2006.
The danger is that while these guidelines may reduce the number of prosecutions, arrests will continue and only those with the stomach to take a case to court will escape without the long-term handicap of a criminal record. Too frequently we are seeing people being offended on behalf of others and the legal system should not allow itself to be dictated by mob rule. It is time that the police focus on bringing to justice those who seek harm, not those who cause offence.