Following the Director of Public Prosecution’s previous announcement of the CPS's plans to hold a series of roundtables to discuss the prosecution of cases involving social media, the first of these events will take place on Monday 8 October.
Points for discussion are as follows:
1. What is the balance that should be struck between free speech and the application of the criminal law?
Is it the business of the police and prosecutors to protect the sensibilities of individuals or groups against what many people would consider to be bad taste? Simply because the view expressed is controversial or unpopular and may cause offense is not in itself enough for criminal charges.
2. Is it agreed that Parliament set the threshold in the criminal law high? The law talks about a criminal offence being committed if a message is “grossly offensive” or of a “menacing character”.
Section 127 of the Communications Act 2003 is concerned with “improper use of public communications network” and makes it an offence if a person “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
It is also an offence if a person “for the purpose of causing annoyance, inconvenience or needless anxiety to another, he... sends .. a message that he knows to be false”.
3. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution more likely?
- the message is part of a campaign of harassment against an individual or group
- the message is a threat against the life or wellbeing of the recipient and/or the a member of the recipient's family or other loved ones. (Should recipient be “individual”?)
- the message, on an objective consideration, is malicious
- the message is an incitement to hatred on grounds of race, religion, disability, or sexual orientation (and ethnic or national origin?)
- the message causes considerable distress to the recipient and/or their family or loved ones.
Are there any other relevant considerations?
4. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution less likely?
- the message is a one-off incident
- the message is intended to be humorous
- the message is not directed at a specific individual (or group?)
- the message was not intended to become public or become known to the individual who is the subject of the message
- the sender of the message has expressed genuine remorse
- the individual (or individual’s family), subject to the message, is not distressed by the message.
Are there any other relevant considerations?
5. Where should the law be directed if a message is retweeted or resent by another without the knowledge of the initial sender or against their wishes?
6. Should police and prosecutors become involved if the message is sent from outside the UK to an individual living here? Or from the UK to an individual living outside the UK?
7. To what extent are messages being sent by social media an issue for the social media industry rather than the criminal law? Should the industry be active in moderating its sites?
