The Director of Public Prosecutions talks to Index about Twitter, Facebook and free speech
Keir Starmer QC became Director of Public Prosecutions in 2008. A man with a proven record as a human rights lawyer, gaining particular kudos as a free speech advocate for work on the McLibel case and the defence of MI5 whistleblower David Shayler.
But Starmer’s time as the head of the Crown Prosecution Service has coincided with the rise of online social media as a part of everyday life for millions of Britons. The consequent rise in criminal cases against Facebook and Twitter users for “offensive” speech brought under the controversial Communications Act 2003 (article 127) has created a headache for Starmer.
In the face of increasing public unease about the criminalisation of online speech, the DPP launched interim guidelines for prosecutors dealing with social media cases. These guidelines ask prosecutors to take many factors into account: whether the messages investigated constitute actual incitement to violence or harassment, the context in which posts are made, the age of the person being investigated (in the hope of avoiding criminalisation of thoughtless teenagers) and even whether the person was intoxicated at the time of sending an “offensive” tweet.
Index met Kier Starmer recently to discuss the guidelines and the CPS’s role in protecting free speech.
“It’s very important the CPS protects free speech — that’s a given,” Starmer says when we meet at his 9th floor office overlooking the Thames with views from the Shard to St Paul’s:
“The way I see it, the CPS is bound by the Human Rights Act, which enshrines Article 10 [the right to free expression]. So as long as article 10 gets it right, there’s an inbuilt safeguard. I appreciate there are different judgment calls along the way. It’s not always the easiest ride, but there is always that very powerful torch than can be shone on what we do, because we have an adversarial public system.”
Has there been a swift rise in social media prosecutions?
“It is certainly true that there are more cases now then there were a year ago and there were more cases a year ago than there were a year before that. Why that is, is hard to guess really. But we need to keep our feet on the ground here. There is great potential for a large number of cases. With something in the order of 340 million tweets a day you only need a low percentage of those to be grossly offensive and you’ve got a lot of potential cases. But we’re not seeing anything of that order.”
Much criticism has centred on the use of the Communications Act to prosecute cases, specifically section 127, which deals with “menacing” and “grossly offensive” communications. Is the act fit for purpose?
“That raises the interesting question of what the Communications Act was intended to deal with,” clearly warming to a pet topic. “It can all be traced back to an act from 1935 which was intended to protect the staff in telephone exchanges just as people were beginning to use telephones. More people were beginning to use telephones and they wanted to protect exchange staff from, guess what, grossly offensive communications etc.
“Tracing the genealogy is really interesting. The bit in the Communications Act which prohibits false messages if the purpose is to distress others could be traced back to the practice of sending false messages in telegrams when that was the quickest way of communicating with people. People thought it was funny to send false messages and others got distressed as they had no means of checking.”
Perhaps the most infamous case to go to court was the “Twitter joke trial”. The case concerned a tweet sent by trainee accountant Paul Chambers, who joked that he would blow Robin Hood airport in Doncaster “sky high” if his flight to Belfast was cancelled due to bad weather. Some believed that Starmer had personally pursued the issue as a “test case”. The DPP resolutely denies this:
“Absolutely not,” he says. “The case started life in the magistrate’s court with a decision by a local prosecutor and a local police officer. There are 730,000 defendants going through magistrates court every year and there’s no way that we could keep sight of, nor would we want to when there are cases going through.
“The difficulty we ran into with [the appeal against the original verdict] was a very technical one. It was an appeal against the crown court, not against the CPS, so I wasn’t a respondent. There’s been a lot written about this as though it were some great mystique and we were trying to drive it forward at all costs, but it was the opposite. ”
Does Starmer think the game has changed when it comes to free speech and law enforcement?
“The challenge in terms of free speech is quite profound, actually,” Starmer replies. “The reason is that, for better or for worse, over the years, the balance to criminal law for free speech has been held by reference to notions such as ‘place’. Now there’s been debates about whether that’s right or wrong, but what is absolutely clear from all that is that there has always been a protected space for free speech. When you get the development in social media you have something that cuts across all that because ‘place’ doesn’t really resonate in the same way.
“I think it’s a big challenge and I think people should engage with it. I mean, there are some who’ll say ‘well there should just be no regulation’, but if you don’t have that view then you have to think how we address the balance now there is this different way of communicating. The scale and the way in which people communicate is part of that and the ability of people to communicate with many more people than they’ve ever been able to before is quite extraordinary. To connect with tens of thousands, possibly even millions of people.”
So how do we deal with public communication in a whole new space?
“At first there were calls for applying the public order approach, but I was a bit uncomfortable with that because it’s much greater than that.”
But there have been public order arrests for social media posts.
“I’m not saying that’s wrong in those cases,” he says. “But I think we made it clear in the guidelines that public order wouldn’t be your first port of call here, because it is designed really to deal with speech in a different way.”
The crucial question raised in the CPS guidelines is that of context, says Starmer:
“Real-life cases come up, and judgements have to be made. And what has happened over a year or two is an increasing number of these cases coming through… I think, having looked at them that they are very difficult judgement calls because the context is critically important.”
The DPP believes that his interim guidelines should help the public, as well as prosecutors, understand the processes behind cases:
“My view is that it’s far better to have the decision making process mapped out,” he explains, “so that one, the public can see how we’re doing it, and two, the prosecutor can be walked through the decision making process for consistency. [It] allows us to see that the evidence considered is relevant and has made a judgement call on the right basis. And that’s what guidelines like this are designed to achieve.”
What happens if, a year from now, we are still seeing a proliferation of controversial cases? Would Starmer call for a change in the law?
“I will do my very best to make the law workable,” he says. “Before going to parliament, if, despite our best efforts we don’t seem to be able to make it workable, then I might at that stage say, well somebody needs to look at the law. I think that’s how I’d approach it.”
Starmer started and finished our meeting with an appeal for Index readers and supporters to engage in the public consultation on the guidelines, which closes on 13 March. As more of us spend our lives communicating online, it’s important that he, and we, get this right.
Padraig Reidy is senior writer for Index on Censorship. He tweets at @mePadraigReidy