Offensive tweets aren't a crime, says head prosecutor

Guidelines aim to clarify trolling rules, but questions remain over free speech

Stewart Mitchell
19 Dec 2012

Twitter and Facebook posters will be less likely to face prosecution for offensive comments online under new guidelines on how officials should deal with social media.

In the wake of a series of high-profile cases that have seen Twitter and Facebook users hauled before the courts and imprisoned over offensive posts, the Crown Prosecution Service (CPS) said it needed to clarify the issue.

According to the CPS, the interim guidelines on social media aim to strike a balance between posts that should be followed up on, such as those that actively threaten or harass, and those that are merely offensive.

"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 those that are grossly offensive on the other," said Keir Starmer, Director of Public Prosecutions.

"The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold," he explained.

Do we really want police and prosecutors deciding what speech is tolerable and acceptable? Do they have the experience, intelligence and social sensitivity

"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 could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression."

The new guidelines relate to the way prosecutors should deal with cases under two ageing pieces of legislation - the Malicious Communications Act 1988 and section 127 of the Communications Act 2003.

The guidelines also set out what is considered grossly offensive. To warrant legal action, posts would have to go beyond being "offensive, shocking or disturbing," while those that are satirical or rude should not warrant prosecution.

Comments that expressed unpopular opinion or humour would also be acceptable "even if distasteful to some or painful to those subjected to it", the CPS said.

As Starmer noted in a column written for The Times: "Much of what is said online is offensive, shocking or in bad taste."

Policing problematic

Despite the intention to clarify the issue, free speech advocates still worry that the law leaves too much responsibility for judging a tweet's offensiveness in the hands of the police and prosecutors.

"Do we really want police and prosecutors deciding what speech is tolerable and acceptable? Do they have the experience, intelligence and social sensitivity to do so? Will they be capable of leaving their own prejudices, including political, religious and social views, at the door?" said Adam Wagner on the UK Human Rights Blog.

"Most importantly, can we imagine a single case in which a prosecution would be appropriate and in the public interest? A prosecution which would make our society better without having a disproportionate chilling effect on free speech on social media?"

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