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Wednesday, 19 December 2012

Interim guidelines on prosecuting cases involving communications sent via social media, issued today by the Director of Public Prosecutions





DPP interim guidelines on prosecuting cases involving communications sent via social media

Published December 19, 2012


Interim guidelines on prosecuting cases involving communications sent via social media, issued today by the Director of Public Prosecutions


Introduction
1. These guidelines set out the approach that prosecutors should take when
making decisions in relation to cases where it is alleged that criminal
offences have been committed by the sending of a communication via
social media. The guidelines are designed to give clear advice to
prosecutors who have been asked either for a charging decision or for
early advice to the police, as well as in reviewing those cases which have
been charged by the police. Adherence to these guidelines will ensure that
there is a consistency of approach across the CPS.

2. The guidelines cover the offences that are likely to be most commonly
committed by the sending of communications via social media. These
guidelines equally apply to the resending (or retweeting) of
communications and whenever they refer to the sending of a
communication, the guidelines should also be read as applying to the
resending of a communication. However, for the reasons set out below,
the context in which any communication is sent will be highly material.

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3. These guidelines are primarily concerned with offences that may be
committed by reason of the nature or content of a communication sent via
social media. Where social media is simply used to facilitate some other
substantive offence, prosecutors should proceed under the substantive
offence in question.


4. These guidelines are interim guidelines and they have immediate effect. At
the end of the public consultation period, they will be reviewed in light of
the responses received. Thereafter final guidelines will be published.

General Principles

5. Prosecutors may only start a prosecution if a case satisfies the test set out
in the Code for Crown Prosecutors. This test has two stages: the first is
the requirement of evidential sufficiency and the second involves
consideration of the public interest.

6. As far as the evidential stage is concerned, a prosecutor must be satisfied
that there is sufficient evidence to provide a realistic prospect of
conviction. This means that an objective, impartial and reasonable jury (or
bench of magistrates or judge sitting alone), properly directed and acting in
accordance with the law, is more likely than not to convict. It is an
objective test based upon the prosecutor’s assessment of the evidence
(including any information that he or she has about the defence).
7. A case which does not pass the evidential stage must not proceed, no
matter how serious or sensitive it may be.

8. It has never been the rule that a prosecution will automatically take place
once the evidential stage is satisfied. In every case where there is
sufficient evidence to justify a prosecution, prosecutors must go on to
consider whether a prosecution is required in the public interest.

9. Every case must be considered on its own individual facts and merits. No
prospective immunity from criminal prosecution can ever be given and
nothing in these guidelines should be read as suggesting otherwise.


10. In the majority of cases, prosecutors should only decide whether to
prosecute after the investigation has been completed. However, there will
be cases occasionally where it is clear, prior to the collection and
consideration of all the likely evidence, that the public interest does not
require a prosecution. In these cases, prosecutors may decide that the
case should not proceed further.

11. Cases involving the sending of communications via social media are likely
to benefit from early consultation between police and prosecutors, and the
police are encouraged to contact the CPS at an early stage of the
investigation.

Initial assessment

12. Communications sent via social media are capable of amounting to
criminal offences and prosecutors should make an initial assessment of
the content of the communication and the course of conduct in question so
as to distinguish between:
(1) Communications which may constitute credible threats of violence
to the person or damage to property.
(2) Communications which specifically target an individual or
individuals and which may constitute harassment or stalking within
the meaning of the Protection from Harassment Act 1997 or which
may constitute other offences, such as blackmail.
(3) Communications which may amount to a breach of a court order.
This can include offences under the Contempt of Court Act 1981 or
section 5 of the Sexual Offences (Amendment) Act 1992. All such
cases should be referred to the Attorney General, and via the
Principal Legal Advisor’s team where necessary.
(4) Communications which do not fall into any of the categories above
and fall to be considered separately (see below): i.e. those which
may be considered grossly offensive, indecent, obscene or
false.

13. As a general approach, cases falling within paragraphs 12 (1), (2) or (3)
should be prosecuted robustly where they satisfy the test set out in the
Code for Crown Prosecutors. Whereas cases which fall within paragraph
12(4) will be subject to a high threshold and in many cases a prosecution
is unlikely to be in the public interest.

14. Having identified which of the categories set out in paragraph 12 the
communication and the course of conduct in question falls into,
prosecutors should follow the approach set out under the relevant heading
below.

(1) Credible threats
15. Communications which may constitute credible threats of violence to the
person may fall to be considered under section 16 of the Offences Against
the Person Act 1861 if the threat is a threat to kill within the meaning of
that provision.
16. Other credible threats of violence to the person may fall to be considered
under section 4 of the Protection from Harassment Act 1997 if they
amount to a course of conduct within the meaning of that provision and
there is sufficient evidence to establish the necessary state of knowledge.
17. Credible threats of violence to the person or damage to property may also
fall to be considered under section 127 of the Communications Act 2003
which prohibits the sending of messages of a “menacing character” by
means of a public telecommunications network. However, before
proceeding with a prosecution under section 127, prosecutors should heed
the words of the Lord Chief Justice in Chambers v DPP [2012] EWH2
2157 (Admin) where he said:
“… a message which does not create fear or apprehension in those to
whom it is communicated, or may reasonably be expected to see it,
falls outside [section 127(i)(a)], for the simple reason that the message
lacks menace.” (Paragraph 30)
As a general rule, threats which are not credible should not be prosecuted,
unless they form part of a campaign of harassment specifically targeting
an individual within the meaning of the Protection from Harassment Act
1997.
18. Where there is evidence of discrimination, prosecutors should pay
particular regard to the provisions of section 28-32 of the Crime and
Disorder Act 1998 and section 145 of the Criminal Justice Act 2003
(increase in sentences for racial and religious aggravation) and section
146 of the Criminal Justice Act 2003 (increase in sentences for
aggravation related to disability, sexual orientation or transgender identity).
(2) Communications targeting specific individuals
19. If communications sent via social media target a specific individual or
individuals, they will fall to be considered under the Protection from
Harassment Act 1997 where they amount to a course of conduct within the
meaning of section 7 of that Act. In such cases, prosecutors should follow
the CPS Legal Guidance on Stalking and Harassment.
20. Where communications target a specific individual and the offence of
blackmail is made out, prosecutors should seek to prosecute the
substantive offence.
21. Again, where there is evidence of discrimination, prosecutors should pay
particular regard to the provisions of section 28-32 of the Crime and
6 Disorder Act 1998 and section 145 of the Criminal Justice Act 2003
(increase in sentences for racial and religious aggravation) and section
146 of the Criminal Justice Act 2003 (increase in sentences for
aggravation related to disability, sexual orientation or transgender identity).

(3) Breach of court orders
22. Court orders can apply to those communicating via social media in the
same way as they apply to others. Accordingly, any communication via
social media that may breach a court order falls to be considered under
the relevant legislation, including the Contempt of Court Act 1981 and
section 5 of the Sexual Offences (Amendment) Act 1992, which makes it
an offence to publish material which may lead to the identification of a
victim of a sexual offence.
23. In such cases, prosecutors should follow the CPS Legal Guidance on
Contempt of Court and Reporting Restrictions and observe the
requirement for contempt cases to be referred to the Attorney General,
and via the Principal Legal Advisor’s team where necessary.
(4) Communications which are grossly offensive, indecent, obscene or
false.
24. Communications which do not fit into any of the categories outlined above
fall to be considered either under section 1 of the Malicious
Communications Act 1988 or under section 127 of the Communications
Act 2003. These provisions refer to communications which are grossly
offensive, indecent, obscene, menacing or false (but as a general rule,
menacing communications should be dealt with under the section above
on credible threats).
25. Section 1 of the Malicious Communications Act 1988 deals with the
sending to another of an electronic communication which is indecent or
grossly offensive, or which conveys a threat, or which is false, provided
there is an intention to cause distress or anxiety to the recipient. The
offence is one of sending, delivering or transmitting, so there is no legal
requirement for the communication to reach the intended recipient. The
terms of section 1 were considered in Connolly v DPP [2007] 1 ALL ER
1012 and “indecent or grossly offensive” were said to be ordinary English
words. A person guilty of an offence under section 1 of the Malicious
Communications Act 1998 is liable, on summary conviction, to
imprisonment for a term not exceeding six months or to a fine or both.
26. Section 127 of the Communications Act 2003 makes it an offence to send
or cause to be sent through a “public electronic communications network“
a message or other matter that is “grossly offensive” or of an “indecent,
obscene or menacing character”. The same section also provides that it is
an offence to send or cause to be sent a false message “for the purpose of
causing annoyance, inconvenience or needless anxiety to another.” The
defendant must be shown to have intended or be aware that the message
was grossly offensive, indecent or menacing, which can be inferred from
the terms of the message or from the defendant’s knowledge of the likely
recipient. The offence is committed by sending the message. There is no
requirement that any person sees the message or be offended by it.
27. In Chambers v DPP [2012] EWHC 2157 (Admin), the Divisional Court held
that because a message sent by Twitter is accessible to all who have
access to the internet, it is a message sent via a “public electronic
communications network”. Since many communications sent via social
media are similarly accessible to all those who have access to the internet,
the same applies to any such communications. However, section 127 of
the Communications Act 2003 does not apply to anything done in the
course of providing a programme service within the meaning of the
Broadcasting Act 1990.

Context and approach
28. Every day many millions of communications are sent via social media and
the application of section 1 of the Malicious Communications Act 1988 and
section 127 of the Communications Act 2003 to any that are grossly
offensive, indecent, obscene or menacing or that are false if there is an
intention to cause annoyance, inconvenience or needless anxiety to
another, creates the potential that a very large number of cases could be
prosecuted before the courts. Taking together, for example, Facebook,
Twitter, LinkedIn and YouTube, there are likely to be hundreds of millions
of communications every month.
29. In these circumstances there is the potential for a chilling effect on free
speech and prosecutors should exercise considerable caution before
bringing charges under section 1 of the Malicious Communications Act
1988 and section 127 of the Communications Act 2003. There is a high
threshold that must be met before criminal proceedings are brought and
in many cases a prosecution is unlikely to be required in the public
interest.
The High Threshold
30. Since both section 1 of the Malicious Communications Act 1988 and
section 127 of the Communications Act 2003 engage Article 10 of the
European Convention on Human Rights, prosecutors are reminded that
these provisions must be interpreted consistently with the free speech
principles in Article 10, which provide that: “Everyone has the right to
freedom of expression. This right shall include the freedom to hold
opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers …”
31. As the European Court of Human Rights has made clear, Article 10
protects not only speech which is well-received and popular, but also
speech which is offensive, shocking or disturbing (Sunday Times v UK (No
2) [1992] 14 EHRR 123):
“Freedom of expression constitutes one of the essential foundations of a
democratic society…it is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a matter of
indifference, but also as to those that offend, shock or disturb …”
32. Freedom of expression and the right to receive and impart information are
not absolute rights. They may be restricted but only where a restriction can
be shown to be both:
• Necessary and
• Proportionate.
These exceptions, however, must be narrowly interpreted and the
necessity for any restrictions convincingly established (see the judgment of
the European Court in the Sunday Times case at paragraph 50)

33. The common law takes a similar approach. In Chambers v DPP [2012]
EWHC 2157 (Admin), the Lord Chief Justice made it clear that:
“Satirical, or iconoclastic, or rude comment, the expression of unpopular
or unfashionable opinion about serious or trivial matters, banter or
humour, even if distasteful to some or painful to those subjected to it
should and no doubt will continue at their customary level, quite
undiminished by [section 127 of the Communications Act 2003].”

34. Prosecutors are reminded that what is prohibited under section 1 of the
Malicious Communications Act 1988 and section 127 of the
Communications Act 2003 is the sending of a communication that is
grossly offensive. A communication sent has to be more than simply
offensive to be contrary to the criminal law. Just because the content
expressed in the communication is in bad taste, controversial or
unpopular, and may cause offence to individuals or a specific community,
this is not in itself sufficient reason to engage the criminal law. As Lord
Bingham made clear in DPP v Collins [2006] UKHL 40:
“There can be no yardstick of gross offensiveness otherwise than by the
application of reasonably enlightened, but not perfectionist,
contemporary standards to the particular message sent in its particular
context”.

35. Context is important and prosecutors should have regard to the fact that
the context in which interactive social media dialogue takes place is quite
different to the context in which other communications take place. Access
is ubiquitous and instantaneous. Banter, jokes and offensive comments
are commonplace and often spontaneous. Communications intended for a
few may reach millions. As Eady J stated in the civil case of Smith v
ADVFN [2008] 1797 (QB) in relation to comments on an internet bulletin
board :
“.. [they are] like contributions to a casual conversation (the analogy
sometimes being drawn with people chatting in a bar) which people
simply note before moving on; they are often uninhibited, casual and ill
thought out; those who participate know this and expect a certain amount
of repartee or ‘give and take’.”

36. Against that background, prosecutors should only proceed with cases
under section 1 of the Malicious Communications Act 1988 and section
127 of the Communications Act 2003 where they are satisfied that the
communication in question is 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.
If so satisfied, prosecutors should go on to consider whether a prosecution
is required in the public interest.

The public interest

37. When assessing whether a prosecution is required in the public interest,
prosecutors must follow the approach set out in the Code for Crown
Prosecutors and the approach set out in these guidelines.

38. Since section 1 of the Malicious Communications Act 1988 and section
127 of the Communications Act 2003 engage Article 10 of the European
Convention on Human Rights, no prosecution should be brought unless it
can be shown on its own facts and merits to be both necessary and
proportionate.

39. Each case must be considered on its own facts and its own merits.
However, a prosecution is unlikely to be both necessary and proportionate
where:
a. The suspect has swiftly taken action to remove the communication
or expressed genuine remorse;
b. Swift and effective action has been taken by others for example,
service providers, to remove the communication in question or
otherwise block access to it;
c. The communication was not intended for a wide audience, nor was
that the obvious consequence of sending the communication;
particularly where the intended audience did not include the victim
or target of the communication in question; or
d. The content of the communication 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.
40. However, where a particular victim is targeted and there is clear evidence
of an intention to cause distress or anxiety, prosecutors should carefully
weigh the effect on the victim. A prosecution for an offence under section 1
of the Malicious Communications Act 1988 may be in the public interest in
such circumstances, particularly if the offence is repeated.
Children and young people

41. The age and maturity of suspects should be given significant weight,
particularly if they are under the age of 18. Children may not appreciate
the potential harm and seriousness of their communications and a
prosecution is rarely likely to be in the public interest.
Public order legislation

42. Although some cases falling within paragraphs 12 (1) – (4) may fall to be
considered under public order legislation, such as Part 1 of the Public
Order Act 1986, particular care should be taken in dealing with social
media cases in this way because public order legislation is primarily
concerned with words spoken or actions carried out in the presence or
hearing of the person being targeted (i.e. where there is physical proximity
between the speaker and the listener) and there are restrictions on
prosecuting words or conduct by a person in a dwelling.

43. Prosecutors are reminded that in Redmond-Bate v DPP (Divisional Court,
23 July 1999), Sedley LJ emphasised that under the Public Order Act
1986 the mere fact that words were irritating, contentious, unwelcome and
provocative was not enough to justify the invocation of the criminal law
unless they tended to provoke violence. In a similar vein in Dehal v CPS
[2005] EWHC 2154 (Admin), Moses J, referring to section 4A of the Public
Order Act 1986, held that:
“the criminal law should not be invoked unless and until it is established
that the conduct which is the subject of the charge amounts to such a
threat to public order as to require the invocation of the criminal as
opposed to the civil law” (paragraph 5).

44. However, in some cases, prosecutors may be satisfied that the incitement
provisions in Part III of the Public Order Act 1986 are relevant and should
be used. Such cases must be referred to the Special Crime and Counter
Terrorism Division (SCCTD) and require the consent of the Attorney
General to proceed.



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