The Director of Public Prosecutions, Keir Starmer QC, has published interim guidelines setting out the approach prosecutors should take in cases involving communications sent via social media.
The guidelines are designed to give clear advice to prosecutors and ensure a consistency of approach across the CPS to these types of cases.
These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.
They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g.
those that are grossly offensive, on the other.
The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide
audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.
The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to
those subjected to it.
We want the interim guidelines to be as fully informed as possible, which is why we held a series of roundtable discussions and meetings with Twitter, Facebook, Liberty and other stakeholders, police and regulators, victim groups, academics, journalists
and bloggers, lawyers and sports organisations ahead of drafting them. I would now encourage everyone with an interest in this matter to give us their views by responding to the public consultation.
As part of their initial assessment, prosecutors are now required to distinguish between:
Communications which may constitute credible threats of violence
Communications which may constitute harassment or stalking
Communications which may amount to a breach of a court order
Communications which do not fall into any of the above categories and fall to be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false.
Those offences falling within the first three categories should, in general, be prosecuted robustly under the relevant legislation, for example the Protection from Harassment Act (1997), where the test set out in the Code for Crown
Prosecutors is satisfied.
Cases which fall within the final category will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.
The high threshold
Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 engage Article 10 of the European Convention of Human Rights, therefore prosecutors are reminded that they must be interpreted
consistently with the free speech principles in Article 10.
Prosecutors are also reminded that what is prohibited under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is the sending of a communication that is grossly offensive. They should
only proceed with cases involving such an offence where they are satisfied that the communication in question is more than:
Offensive, shocking or disturbing; or
Satirical, iconoclastic or rude comment; or
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 it.
The public interest
In line with the free speech principles in Article 10, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate.
A prosecution is unlikely to be both necessary and proportionate where:
a) The suspect has swiftly taken action to remove the communication or expressed genuine remorse;
b) Swift and effective action has been taken by others, for example service providers, to remove the communication in question or otherwise block access to it;
c) 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
d) 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.
The age and maturity of suspect should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and as such prosecutions of
children are rarely likely to be in the public interest.
If you think you're making a private call, or sending a discreet message, think again. Under an anti-terrorism law passed in late 2001 in the wake of the atrocities of September 11, details of every website visited and the transmission of every email
sent and every phone call made in the UK can be retained and made available to authorities. This may give individuals privacy concerns but for telcos and internet service providers faced with the consequent storage and retrieval requirements, it is cause
for financial concern.
The Anti-terrorism, Crime and Security Act (the ' ATCSA ') was a hurried piece of legislation which extends some powers introduced in the Regulation of Investigatory Powers Act of 2000 – better known as 'RIPA'. In addition, the EC Data Retention
Directive, which was approved following the Madrid train bombings of 2004 and the London terror attacks of 2005 (and implemented in the UK in respect of telephone communications by the Data Retention Regulations 2007 and due to be implemented in respect
of internet-related data no later than 15th March 2009) requires the retention of data by communications services providers.
When it was passed into law, the Regulation of Investigatory Powers Act (2000) sounded a pretty innocuous piece of legislation. But in truth it represented a significant victory for the busybody state over our ancient liberties.
Labour claimed it was responding to demands from civil liberties campaigners for more control over state snooping. But it soon became clear that the legislation which Jack Straw, then Home Secretary, was introducing would have the opposite effect,
massively expanding the ability of the public sector to pry into our private lives.
The Act, which has been quietly amended several times (each time handing more powers to the public sector), now gives an unprecedented range of state agencies the right to listen to our phone conversations, tap our emails and open our post. In the last
nine months of 2006, 960 new applications for the right to peer into the private lives of Britons were made every day.
It is a level of Government surveillance that would make even the Stasi, the former East German secret police renowned as the world's most effective intelligence agency, proud.
There are three different types of surveillance:
Interception of Communications - listening in while people are on the phone, or watching what we do on the internet - is the most difficult to justify.
But the grounds for interception are so wide as to allow most requests to be approved. As well as the more predictable excuse of national security , they include safeguarding the economic well-being of the UK . The police, the security
services and Customs can all use this technique but they need authorisation from the Home Secretary herself or, in urgent cases, get temporary permission from one of her senior officials.
Surveillance - old-fashioned spying. The list of possible justifications for this is absurdly long - including to prevent and detect crime or prevent disorder, public safety, public health, to assess or collect any tax,
duty, levy or other charge payable to a government department . Just about any of us could be under surveillance using one of this list.
Most worryingly, a long list of government agencies - including 474 councils - can put us under the spotlight. Senior officials in each one can simply give the go-ahead and apply for a rubber stamp to be given later by the Interception Commissioner.
This Commissioner, former judge Sir Paul Kennedy, with a team of five inspectors, is supposed to check to make sure that all the bugging and spying waived through by the Home Secretary or others has been justified. His report this week identifies more
than 1,000 cases over nine months where he found that the rules had been broken.
Access to communications data . This type of surveillance is the most common and includes discovering the identities of who we phone and which internet sites we visit. This information is even easier for public authorities to
obtain with relatively junior officials able to authorise it.
Later, as in the case of surveillance, justification for needing this information is considered by overworked bureaucrats accountable to the Interception Commissioner.
But by the time his staff gets round to looking at the paperwork, the trading standards officers down at the town hall, for example, may have been peering at your phone and internet records for more than a year.
There is a tribunal to which you can complain, but since virtually no one under surveillance will know they are being watched, the tribunal isn't busy and has virtually never found in favour of a complainant.
How did the Government get away with this? Well, the Lords did make a fuss at the time. Tory peer Lord Northesk said it sanctioned mass domestic surveillance measures.
The Government appeared to be forced into a climbdown. The Regulation of Investigatory Powers Act (RIPA) initially only covered the nine most crucial law enforcement agencies (police, the taxman, the intelligence agencies etc).
But this merely delayed the stealthy march of Big Brother. In 2004, the number of groups with the right to poke in our lives expanded to 792; the laws to allow this had been slipped quietly through the Commons by David Blunkett.
As usual, Whitehall got its way by waiting for the fuss to die down. Incidentally, the only group with an exemption from being bugged are MPs themselves.
But the Act didn't merely extend the rights of bureaucrats to check on us, it also forced the larger internet service providers to build into their systems the technological capability to cater for all this snooping.
In practice, the result was that "black boxes" were installed in all main ISPs, copying all the information available to them straight to the security services. Then, when MI5 or the police obtain an authorisation for surveillance, they merely
tap into the black box. In return, the internet companies have been able to recoup some of their costs from the taxpayer.
While writing this article, I made several phone calls and looked at a number of sources on the internet. If anyone in Whitehall can think of a plausible reason why this article threatens the economic security of Britain, or any of the myriad excuses
detailed above, they will be able this morning to see who I spoke to and where I went on the net, to conduct my research. Surely, that can't be right?
Section 85 Prohibition on sending certain articles by post -
(3) A person commits an offence if he sends by post a postal packet which encloses-
(a) any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or
(b) any other indecent or obscene article (whether or not of a similar kind to those mentioned in paragraph (a)).
(4) A person commits an offence if he sends by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character. (12 month prison term attached)
Explanatory notes to the Postal Services Act 2000
Section 85: Prohibition on sending certain articles by post
Section 85 sets out criminal offences of sending postal packets by post which … contain:
indecent or obscene material. It is also an offence if such material is on the packet or cover of the packet.
The offences apply to postal packets handled by any postal operator. The section replaces section 11 of the Post Office Act 1953.
Section 127 Improper use of public electronic communications network
(1) A person is guilty of an offence if he-
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he-
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).