Guidelines issued by the Crown Prosecution Service today could give greater weight to free speech online by establishing a high threshold for prosecutions for offensive or abusive comments made on social networking sites.

Director of Public Prosecutions, Keir Starmer, has expressed concern over “the potential for a chilling effect on free speech” for prosecuting people who send communications that are “grossly offensive, indecent, obscene or menacing.”

Starmer said that a prosecution was unlikely to be necessary, proportionate or in the public interest if the communication were “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.”

Prosecutors will now be required to differentiate between such messages and communications that amount to credible threats of violence, a targeted campaign of harassment or those which breach court orders.

The age and maturity of a suspect will also need to be taken into consideration, particularly if they are under 18. The guidelines state that prosecutions of children would rarely be in the public interest, as children may not appreciate the potential harm of their communications.

“We welcome these guidelines and hope that they will be used to end the excessive prosecutions that we have seen in recent years,” said Index CEO, Kirsty Hughes. “In a plural society that respects free expression, there is no right not to be offended, and these guidelines acknowledge that.”

The UK has seen a recent rise in social media prosecutions. In October, Lancashire man Matthew Woods was sentenced to 12 weeks in prison for making “despicable” jokes about missing five-year-old April Jones on Facebook, having pleaded guilty to “sending by means of a public electronic communications network a message or other matter that is grossly offensive” (section 127 (1)a of the Communications Act 2003). Also in October, Azhar Ahmed, who posted on Facebook that British soldiers should “die and go to hell”, was given a community order and a fine.

Paul Chambers, the man at the centre of the Twitter Joke Trial who was convicted in 2010 of sending a “menacing communication” after jokingly tweeting that he would blow an airport “sky high”, told Index: “I’m far more heartened than I expected to be. All the noises coming out of the early discussions suggested that lessons had not been learned, but it appears the DPP has finally taken a step in the right direction.”

He added:

I’d like to know, however, are how this is to be applied to arrests, given that this is more geared towards prosecutions. Users shouldn’t face arrest for the same reasons they shouldn’t face prosecutions in these situations. Secondly, given that the guidelines make mention of users who immediately take down the posts and show genuine remorse, where does this leave Azhar Ahmed, who did exactly that yet still finds himself with a criminal conviction. There should be moves to rescind this immediately.

The guidelines are open to public consultation, which is available on the CPS website and closes on 13 March 2013.

More on this story:

Read the guidelines in full here

Graham Linehan on the Twitter Joke Trial

Padraig Reidy: We cannot keep prosecuting jokes

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The arrest of a young man on Remembrance Sunday, apparently for posting a picture of a burning poppy, is the latest case of “offensive” online speech being pursued by the law. So yesterday’s panel discussion on the subject at the Internet Service Providers’ Association (ISPA) annual could not have been better timed.

There was an excellent range of speakers on the panel: Keir Starmer QC, the Director of Public Prosecutions, Helen Goodman MP, Labour’s Shadow Culture Minister, Facebook’s Director of Policy Simon Milner, and Index’s CEO Kirsty Hughes. A lot of ground was covered — but the impression left at the end of the session was one that should leave advocates of freedom of speech more than a little trepidation.

Dan Tench, the chair, began by outlining the variety of potential offences — from the increasingly infamous Section 127 of the Communications Act 2003 to the lesser known Malicious Communications Act 1988, the act under which the young man was arrested for his poppy burning picture on Sunday. It was, and is, a somewhat depressing and confusing list of often broadly worded laws: even lawyers struggle with it, so the difficulties of the average Twitter or Facebook user — or even the average police officer — can have in understanding it are hard to overstate. And the law really matters: Keir Starmer was clear (and correct) throughout that the CPS’s job is to prosecute in accordance with this law. Simon Milner was similarly direct: Facebook’s policy is to obey the law. Facebook may be an American corporation, but they’ll follow local laws when dealing with speech: in Germany, for example, laws on Holocaust denial, in the UK, all the multi-faceted laws on offensive speech.

Having said that, the one piece of potentially good news to emerge from the panel was that Keir Starmer announced that his office would be producing interim guidelines covering offensive speech online in the next few weeks. The contents of those guidelines will be interesting — Starmer seemed to suggest that they would outline how the law should apply, and how public interest in a prosecution would be determined. There would not, and indeed should not, be a shift in public policy as a result — though for differing reasons different members of both the panel and the audience would probably like to see that.

That’s where the worry for advocates of free speech should come in. Kirsty Hughes spoke eloquently about the key problems with our current approach, about how what we do in the UK is watched very carefully by those in more repressive regimes and used to justify their oppression, about how there seems to be a growing sense of enforcing some sort of “orthodoxy”, and about how people seem to think they have a right not to be offended. But Starmer, to an extent, didn’t seem to acknowledge that there might be a problem — instead he talked of the difficulty of dealing with delicate issues like the offensive remarks concerning the death of April Jones — while Helen Goodman MP’s approach seemed to be that we hadn’t gone nearly far enough in controlling speech.

That was the most depressing part of the panel. Though she had just returned from the Internet Governance Forum in Baku, and claimed to have been moved by and understood the crucial role played by freedom of speech on the internet in the struggles against oppression in Egypt and Azerbaijan, she didn’t seem to see any connection at all between the control of speech in the UK with the control of speech elsewhere. Freedom of speech, it seemed, was important in other places, but not in the UK. Indeed, the time she showed most emotion was her disappointment to discover that a charge of harassment required a pattern of behaviour, rather than just a single incident.

If the panel is any indication, we can’t expect a great improvement in the treatment of “offensive” speech online — and incidents like the current poppy-burning story can only be expected to recur. I hope that isn’t the case — just as I hope that politicians like Helen Goodman MP can be persuaded to see the importance of freedom of speech in practice as well as in principle. This subject will keep on raising its head until something changes — and free speech advocates should keep on making sure that it does.

Dr Paul Bernal is lecturer in IT, IP and media law at the University of East Anglia. He tweets from @paulbernalUK

READ: Man arrested for Facebook poppy burning picture

Matthew Woods Facebook conviction – we cannot keep prosecuting jokes

Paul Chambers on the Director of Public Prosecutions

The post Does Keir Starmer see the problem with poppy burners? appeared first on Index on Censorship.

“To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration. In the first instance, the CPS will draft interim guidelines. There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible.”

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