19th February 2013

Given the huge increase in the use of various forms of social media over recent years it shouldn’t really be a surprise that social media communications are featuring more frequently in criminal court cases. Quite often now evidence in criminal cases will come in part from Facebook, Twitter etc even if this is not the main issue in the case.

What has been discussed in the press a lot recently is what approach should be taken to communications and messages using such sites when the messages themselves are potentially the basis for the prosecution rather than supporting evidence in a broader case. There has also been wide spread reporting of some high profile cases recently. The discussion raises interesting and important issues about the potential tension between freedom of speech and expression even if that speech or expression is unpopular or is considered offensive, unpleasant, distasteful or painful to others and what speech or expression crosses the boundary and becomes criminal in nature.

The Crown Prosecution Service (CPS) often advise the police what, if any, criminal charges should be brought in a case and mostly they make the final decision as to whether a prosecution should proceed in court. When making those decisions the CPS will consider, amongst other things, whether it is in the public interest to proceed with a case. Importantly of course the CPS do not make laws but they do have their own code of practice and guidelines which they will take into account in considering any case including when looking at the public interest decision. It&s also important to note that there are no criminal offences specific to social media sites (although there are some statutory offences specifically about telecommunications in general) – any prosecutions would be brought under one of a number of existing statutory provisions depending on the circumstances.

In December the CPS issued a public consultation paper for new guidelines on prosecutions involving social media communications. When the paper was launched The Director of Public Prosecutions (Keir Starmer QC) indicated how he believed the CPS should approach such cases. He was quoted as saying that the guidelines are:

Intended to strike the right balance between freedom of expression and the need to uphold the criminal law. They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media e.g. those that are grossly offensive on the other. The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what would conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.

It seems clear then that the CPS view is that freedom of expression and speech should rightly be protected but that needs to be balanced against the criminal law and protection of the public.

As the use of social media networks continues to grow my view is that it is something that is bound to feature more and more in criminal law. How the CPS approaches such prosecutions is important to everyone and raises fundamental issues. The consultation paper issued by the CPS is an important document raising significant issues. If you want to have your views taken into account about how the CPS should consider such cases you can access and respond to the consultation paper on the CPS website. The deadline for responses to be considered is currently 13 March 2013.