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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“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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“Today’s judgment is an advance in the justice system’s handling of free speech on the web,” said Kirsty Hughes, Chief Executive of Index on Censorship. “As more and more of us use social media, it is important that the law understands how people communicate online. This ruling is a step in the right direction.”

Chambers was convicted in 2010 for sending a “menacing communication” after joking on Twitter that he would blow Doncaster’s Robin Hood Airport “sky high” if it closed due to weather conditions. He had been due to fly from the airport to Belfast to meet his now-fiancée Sarah Tonner.

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David Allen Green, the solicitor and blogger who has been advising Chambers, wlecomed the decision by Doncaster Crown Court:

“This is good news, said Green. Doncaster Crown Court has agreed to allow Appeal by Case Stated to the High Court.”

He continued:

This provides the High Court with a welcome opportunity to provide guidance on the correct scope of Section 127 of the Communications Act. It will be the first time the High Court will consider what a ‘menacing communication’ means under this section.

Chambers’s conviction, and the subsequent rejection of his initial appeal, caused outrage and consternation for web users and social network enthusiasts across the world. Writing for Index on Censorship’s Free Speech Blog, IT Crowd and Father Ted creator Graham Linehan said:

“The Twitter joke trial is the clearest indication yet that the world is divided into two sorts of people at the moment. The people who “get it”, and the people who don’t.

[...]

From what I understand, much of the Twitter joke trial has involved trying to communicate to judge and prosecution what Twitter actually is. And if they don’t understand it, then how can they be trusted to make proportionate, reasonable or just decisions about it?”

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A statement released today by Prieskel and Co solicitors stated:

Our client Paul Chambers has decided today to proceed with a High Court challenge to his conviction under section 127 of the Communications Act 2003. Paul was convicted on 10 May 2010 by Doncaster Magistrates’ Court and his appeal was turned down by Doncaster Crown Court on 11 November 2010.

Paul has instructed David Allen Green, head of media law at Preiskel & Co, and Ben Emmerson QC of Matrix Chambers, one of the UK’s leading human rights and criminal lawyers, for this challenge. Stephen Ferguson of 2 Bedford Row and Sarah Przybylska of 2 Hare Court, who appeared at the Crown Court hearing, also continue to be instructed.

John Kampfner, chief executive of Index on Censorship, which campaigns for free expression in the UK and internationally, commented: “Paul Chambers conviction for a simple joke was a travesty, and a prime example of how UK courts actively rule against free expression. Index on Censorship fully supports his appeal, and would urge the British public to get behind him.

Chambers’s case attracted huge international attention, and support from high-profile tweeters including Stephen Fry and comedy writer Graham Linehan.

Read Graham Linehan writing exclusively for Index on the Twitter Joke case here

If you wish to donate to Paul Chambers’s legal fund, click here

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When the trainee accountant’s plans to travel to meet a fellow tweeter were affected by severe weather earlier this year, he vented his frustration on Twitter, writing:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!

The tweet was seen by an airport duty manager and Robin Hood Airport notified South Yorkshire Police. A week after posting the joke, Chambers was arrested under anti-terrorism laws, on suspicion of creating a bomb hoax. Police confiscated his iPhone, laptop and personal computer. He subsequently lost his job.

Chambers was charged the following month with sending a menacing message via a public telecommunications network — the first person in the UK to be charged in connection with Twitter. A district judge found him guilty of the offence on 10 May, and Chambers was fined a total of £1,000.

After his conviction Chambers said: “It did not cross my mind that Robin Hood would ever look at Twitter or take it seriously because it was innocuous hyperbole.”

The appeal against the conviction began on 24 September, with lawyer David Allen Green — better known as blogger Jack of Kent — coordinating the defence. Chambers gained hundreds of supporters on Twitter, many of whom quoted John Betjeman’s line “Come friendly bombs and fall on Slough”; Allen Green has argued that the poet’s words could be interpreted in the same way as Chambers’ tweet.

Chambers is now liable for the £1000 fine and costs from his original conviction as well as an additional £2600 in prosecution costs.

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