New prosecution guidance on offensive speech online: sensible, but the law is still out of date

19 December 2012 by Adam Wagner

The Crown Prosecution Service (CPS) has published interim guidance on when to prosecute people for grossly offensive and obscene messages they send on social media. The guidelines are now subject to a full public consultation. Earlier this year, I took part in a series of round table discussions with the DPP over how the guidelines would look.

Section 127 of the Communications Act 2003 prohibits any message sent “by means of a public electronic communications network” which is “grossly offensive or of an indecent, obscene or menacing character“.

The guidelines are sensible, to a point. They will make it less likely in future that people are prosecuted for saying stupid things online. Prosecutors are reminded that many offences will already be covered under other criminal laws such as those dealing with harassment, stalking or other violent threats. Cases which are not covered by those laws, that is the grossly offensive etc messages, are “subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest“. The CPS then seeks to define “grossly” offensive, at least in the negative, as cases which are 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.

Another sensible aspect of the guidelines is that they identify a number of post-communication events which will reduce the chance of a prosecution, such as an apology or swift removal of the message.

However, and this is a big “however”, the guidance still leaves prosecutors deciding what is “more than” the offensive, shocking, satirical etc. During the roundtable discussions, the DPP was fond of saying “context is everything” (in fact, the guidance says “context is important”), and he is right. But given how narrowly the guidelines attempt to draw the s.127 offence, it does leave you wondering what kinds cases will be prosecuted. It may be that no cases are brought at all as a result of the guidelines. But who knows.

The underlying point is that this law, which was designed for a completely different purpose, has given the CPS the role of policing speech on social media. And that was never Parliament’s intention when it approved the law in 2003 (context is everything: Facebook was launched in February 2004, Twitter in March 2006).

Unfortunately, there have already been a number of cases brought under this legislation, designed before social media was invented, which are highly problematic for free speech. The BBC has helpfully listed some of them here, and you can read my views on one of the more recent cases here: Twelve weeks in prison for sick jokes on Facebook? Really?.

I raised a number of questions in that post in relation to consistency, political speech and the fact that this law is now an anachronism and needs to be reviewed. One of the pernicious aspects of this law is that prosecutions are brought very quickly, prosecuted in the magistrates courts and guilty pleas entered within hours. That is what happened to Matthew Woods (the April Jones ‘joker’), and even under the current guidance it seems that the same could happen to Woods again.

The CPS is absolutely right to set down as sensible approach to prosecutions as it doesn’t have the luxury of ignoring bad laws. It may also avoid the embarrassment of being criticised by the courts in cases such as Paul Chambers. But this is a law which urgently needs to be reviewed.

Social media is not the Wild West. As the guidance makes clear, there are already a number of other criminal laws which protect people from harassment, stalking and threats of violence on social media as they would be on the street or in the workplace. But what does s.127 add except an opportunity for prosecutors to decide what kind of speech is ‘in the public interest’?

In the final analysis, this guidance, which leaves prosecutors in a much better position than they were previously, still leaves them deciding, when faced with a tweet, Facebook post or whatever, whether it 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.

Do we really want police and prosecutors deciding what speech is tolerable and acceptable? Do they have the experience, intelligence and social sensitivity to do so? Will they be capable of leaving their own prejudices, including political, religious and social views, at the door? Should they be concentrating on other crimes rather than (as the guidance admits) the hundreds of millions of messages sent each month on social media?

Most importantly, can we imagine a single case in which a prosecution would be appropriate and in the public interest? A prosecution which would make our society better without having a disproportionate chilling effect on free speech on social media? I am not sure I can.

As always, we won’t know what effects this guidance has until we hear about the first cases brought under it. In the meantime, people should still be very careful about what they tweet or post on Facebook. And that is a problem for freedom of speech.

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Read more:

• Law in Action on social media prosecutions
• Twelve weeks in prison for sick jokes on Facebook? Really?
• Free speech and prosecution in the age of Twitter