{"id":44292,"date":"2013-03-04T13:02:45","date_gmt":"2013-03-04T13:02:45","guid":{"rendered":"http:\/\/www.indexoncensorship.org\/?p=44292"},"modified":"2017-03-28T12:14:08","modified_gmt":"2017-03-28T11:14:08","slug":"index-interview-keir-starmer","status":"publish","type":"post","link":"https:\/\/www.indexoncensorship.org\/newsite02may\/?p=44292","title":{"rendered":"Index interview: Keir Starmer"},"content":{"rendered":"

The Director of Public Prosecutions talks to Index about Twitter, Facebook and free speech<\/strong>
\n\"Keir<\/p>\n


\nRead Index on Censorship’s response to the CPS guidelines on social media prosecutions here<\/a><\/em><\/p>\n

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<\/a> case and the defence of MI5 whistleblower David Shayler<\/a>.<\/p>\n

But Starmer\u2019s 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.<\/p>\n

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 \u201coffensive\u201d tweet.<\/p>\n

Index met Kier Starmer recently to discuss the guidelines and the CPS\u2019s role in protecting free speech.<\/p>\n

\u201cIt\u2019s very important the CPS protects free speech \u2014 that\u2019s a given,\u201d Starmer says when we meet at his 9th floor office overlooking the Thames with views from the Shard to St Paul\u2019s:<\/p>\n

\u201cThe 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\u2019s an inbuilt safeguard. I appreciate there are different judgment calls along the way. It\u2019s 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.\u201d<\/p>\n

Has there been a swift rise in social media prosecutions?<\/p>\n

\u201cIt 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\u2019ve got a lot of potential cases. But we\u2019re not seeing anything of that order.\u201d<\/p>\n

Much criticism has centred on the use of the Communications Act to prosecute cases, specifically section 127, which deals with \u201cmenacing\u201d and \u201cgrossly offensive\u201d communications. Is the act fit for purpose?<\/p>\n

\u201cThat raises the interesting question of what the Communications Act was intended to deal with,\u201d clearly warming to a pet topic. \u201cIt 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.<\/p>\n

\u201cTracing 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.\u201d<\/p>\n

Perhaps the most infamous case to go to court was the \u201cTwitter joke trial<\/a>\u201d. The case concerned a tweet sent by trainee accountant Paul Chambers, who joked that he would blow Robin Hood airport in Doncaster \u201csky high\u201d if his flight to Belfast was cancelled due to bad weather. Some believed that Starmer had personally pursued the issue as a \u201ctest case\u201d. The DPP resolutely denies this:<\/p>\n

\u201cAbsolutely not,\u201d he says. \u201cThe case started life in the magistrate\u2019s 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\u2019s no way that we could keep sight of, nor would we want to when there are cases going through.<\/p>\n

\u201cThe 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\u2019t a respondent. There\u2019s 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. \u201d<\/p>\n

Does Starmer think the game has changed when it comes to free speech and law enforcement?<\/p>\n

\u201cThe challenge in terms of free speech is quite profound, actually,\u201d Starmer replies. \u201cThe 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\u2019s been debates about whether that\u2019s 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\u2019t really resonate in the same way.<\/p>\n

\u201cI think it\u2019s a big challenge and I think people should engage with it. I mean, there are some who\u2019ll say ‘well there should just be no regulation’, but if you don\u2019t 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\u2019ve ever been able to before is quite extraordinary. To connect with tens of thousands, possibly even millions of people.\u201d<\/p>\n

So how do we deal with public communication in a whole new space?<\/p>\n

\u201cAt first there were calls for applying the public order approach, but I was a bit uncomfortable with that because it\u2019s much greater than that.\u201d<\/p>\n

But there have been public order arrests for social media posts.<\/p>\n

\u201cI\u2019m not saying that\u2019s wrong in those cases,\u201d he says. \u201cBut I think we made it clear in the guidelines that public order wouldn\u2019t be your first port of call here, because it is designed really to deal with speech in a different way.\u201d<\/p>\n

The crucial question raised in the CPS guidelines is that of context, says Starmer:<\/p>\n

\u201cReal-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\u2026 I think, having looked at them that they are very difficult judgement calls because the context is critically important.\u201d<\/p>\n

The DPP believes that his interim guidelines should help the public, as well as prosecutors, understand the processes behind cases:<\/p>\n

\u201cMy view is that it\u2019s far better to have the decision making process mapped out,\u201d he explains, \u201cso that one, the public can see how we\u2019re 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\u2019s what guidelines like this are designed to achieve.\u201d<\/p>\n

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?<\/p>\n

\u201cI will do my very best to make the law workable,\u201d he says. \u201cBefore going to parliament, if, despite our best efforts we don\u2019t 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\u2019s how I\u2019d approach it.\u201d<\/p>\n

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\u2019s important that he, and we, get this right.<\/p>\n

Padraig Reidy is senior writer for Index on Censorship. He tweets at @mePadraigReidy<\/a>
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Index on Censorship Social Media Response CPS<\/a><\/p>\n