The CPS today announced that there will be a consultation exercise on new social media guidance. I will be blogging on this tomorrow at the New Statesman.
But in the meantime, please do share your views on these paragraphs:
“This case is one of a growing number involving the use of social media that the CPS has had to consider. There are likely to be many more. The recent increase in the use of social media has been profound. It is estimated that on Twitter alone there are 340 million messages sent daily. And the context in which this interactive social media dialogue takes place is quite different to the context in which other communications take place. Access to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions.
“Against that background, the CPS has the task of balancing the fundamental right of free speech and the need to prosecute serious wrongdoing on a case by case basis. That often involves very difficult judgment calls and, in the largely unchartered territory of social media, the CPS is proceeding on a case by case basis. In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained. But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest.
“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.
“But this is not just a matter for prosecutors. Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.”
3 Responses to The Proposal for CPS Guidance
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A case referred to on the website of the Greater Manchester Police today has framed an interesting debate. It is here: http://www.gmp.police.uk/mainsite/pages/953988414829F95680257A7F0045C63B
As far as I am able to determine, this is the first time someone has been arrested under the s127 charge for publishing what is essentially a web page. It remains to be seen whether the CPS will decide to charge, but I’ve been operating under the belief that web pages are publishing and publishing is the stuff of content services and therefore excluded from s127. If web pages are prosecutable in this way then we are all in serious trouble. Lord Chief Justice insists that a tweet (and by extension Facebook update) that begins life as a message remains a message even when read later as content. My interpretation would therefore be that a nugget of information that starts life as content remains content. This is to satisfy Parliament’s clear intention to exclude content services from the scope of this legislation. If it turns out that GMP have got it “right” and LCJ would agree, then I intend to fight this like hell and I hope your readers will be with me.
In certain contexts someone has a reasonable expectation of limits of others’ speech. This depends on whose “turf” the speaker is on and how easily the hearer could have avoided hearing the speech.
A mosque, for example, is just the wrong place to start criticising Islam/Muhammed/Allah at all.
In the street the Muslim is entitled to expect that he wont be forced to hear or see the more unpleasant attacks on Islam.
With a magazine, easily avoided and with a clear indication of it’s contents, I don’t the Muslim has any rights to object at all.
There is a world of difference between:
- posting something denigrating the dead on a Facebook page created by someone else to commerate the deceased and
- Denigrating the dead on a Facebook page you created for that purpose
Or
- sending offensive tweets about Louise Mensch and her children to Louise Mensch and
- making offensive comments about soldiers on a Facebook page not accessed by those soldiers or their family
These differences hold even if the words used in each of the example are “objectively” equally vile. The problem the CPS has at the moment is trying to make decisions on solely on how offensive a message is (does it count as “grossly”) without any thought to the forum into which the message is put.
Perhaps the law needs to be tweaked to bring consideration of the audience and their reasonable expectation of, for want of a better word, civility.
Arghhhh!!! I’m wrong in my above comment. I’ve reread sections 32 and 151 of the Act. Content services are not excluded. The internet has been found to be a public electronic communications network, which means it is an electronic communications network. An electronic communications service (s32) cannot be a content service, but both operate over an ECN so that means a “message or other” matter that is sent by way of either an electronic communications service or an electronic content service is caught. This would mean that any old static web page could be caught. This is bad news.
There’s an argument that the internet is not an ECN because it provides primarily content services nowadays rather than communications services, but this didn’t fly. I think the law needs to change.