Your online habits could land you in prison
However, the CPS also says it would “robustly prosecute” posts that “amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders, and those communications which may be considered grossly offensive”.
The court ruled that the actions of Isabella Sorley and John Nimmo fell into the “grossly offensive” category when they threatened campaigner Caroline Criado-Perez over her part in calls to put Jane Austen on £10 banknotes.
Their tweeted assertions that “I will find you” made the harassment more credible and unnerving, and the judge accepted that the persistent campaign had a “life-changing impact”. The pair were sentenced to jail for their trolling, yet plenty of cases don’t make it to court.
That level of subjectivity over whether an offence has been committed at all – where one person’s gross offence is another’s sick humour – can make the law look silly
The difficulty in sifting the acceptable from the illegal is that the fine line between “grossly offensive” and merely offensive is subjective.
While the troll who posted a homophobic tweet about diver Tom Daley hasn’t been charged, the student who made vile remarks about footballer Fabrice Muamba after he collapsed during a game (“LOL. F*** Muamba he’s dead !!! #Haha”) was sentenced to two months in jail.
As much as the law, public opinion seems to dictate whether an ill-thought-out post could see you in the dock, but it’s hard to predict what will outrage social networks.
“Prosecutorial discretion has a big role to play. The CPS requires action to be in the public interest, and that can be subjective, as is what’s ‘grossly offensive’,” says Adam Rendle, an associate with law firm Taylor Wessing. “That level of subjectivity over whether an offence has been committed at all – where one person’s gross offence is another’s sick humour – can make the law look silly.”
Criminal action can also be taken over posts that could incite violence or hate crimes, with the riots of 2011 providing plenty of overtime for police, as they followed up on posts that suggested where rioters should meet to take part in disturbances.
Perry Sutcliffe-Keenan and Jordan Blackshaw, for example, were sentenced to four years under the Serious Crimes Act after both created Facebook events attempting to arrange meeting points for riots. No-one except the police turned up, but the judge still wanted to set an example.
Contempt of court
Court reporters are taught on their first day in the job not to break court orders or name sex-offence victims, but on Twitter there’s no instruction into the nuances of contempt of court.
In 2012, nine people were fined for tweeting the name of the victim in a rape case that found footballer Ched Evans guilty. The nine people, who pleaded guilty, all said they didn’t know that naming sexual-assault victims was prohibited, but – as with other offences – ignorance is no defence.
Given the instructions provided to a jury, it’s unlikely that juror Joanne Fraill could claim ignorance when she also faced contempt-of-court charges after contacting the defendant in a multimillion-pound drug case via Facebook.
“Her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial,” the judge said in his ruling.
The trial collapsed as a result of her actions, and the High Court judge expressed his anger by handing out an eight-month prison sentence.
While threats, harassment and incitement are criminal matters, social media is also a rich seam of income for lawyers specialising in defamation. Sally Bercow’s expensive run-in with Lord McAlpine – in which a judge ruled that the wife of the House of Commons speaker had falsely accused McAlpine of paedophilia – is perhaps the highest-profile example, but anyone can face ruinous costs for libelling online.