The Director of Public Prosecutions issued ‘Interim guidelines on prosecuting cases involving communications sent via social media’ today – in response to the plethora of cases that have been gathering attention over the last few years. There have been many: from the ‘Twitter Joke Trial’ to the racist tweets following the collapse of footballer Fabrice Muamba, the ‘grossly offensive’ tweets about April Jones and so forth. The issuance of such guidelines is in general a good thing – it is important that the CPS gets a better grip over the realities of the social media – and the guidelines themselves seem to represent a small step forward in that direction. It is important to understand, however, that these are just guidelines, and that what is needed, in my view at least, is a change in the law itself. That, of course, is quite rightly not the business of the DPP. It will be up to Parliament to deal with – and whether Parliament is up to the task is a huge question.
My main thoughts on the guidelines are:
- Their very existence is a good thing – they will force prosecutors to think a bit more deeply about how the social media functions
- The real test of their success or failure will not be how they look, but how they work out in practice. The proof of this pudding is very definitely in the eating. Only time will tell – but I’m not overly optimistic.
- The three types of communication separated out for comment individually (credible threats, communications targeting specific individuals, breaches of court orders) are dealt with pretty much as expected: the law is outlined in a straightforward fashion. However, with regard to the ‘credible threats’ section at least, the evidence of the Twitter Joke Trial does not inspire confidence in the interpretation – and the lack of acknowledgement (let alone contrition) from the DPP of how poorly the CPS dealt with that trial only makes that worse. Have the DPP and CPS learned from that fiasco, or have they merely licked their wounds and brooded? Again, only time will tell.
- The talk of a ‘high threshold’ – emphasised in the guidelines – is very much to be welcomed. The guidelines say that prosecutors should only proceed with a case when they are satisfied that the communication in question is more than: offensive, shocking or disturbing; satirical, iconoclastic or rude comment; or the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it. This is good – but again, time will tell how well it works out in practice.
- The suggestion that prosecutions are unlikely to be in the public interest when the communication has been swiftly removed, or remorse shown, or if it wasn’t intended for a wide audience etc is also very much to be welcomed.
Overall, then, these represent small steps, and could help – but as noted, the real test is how they work out in practice. As far as they go, these guidelines seem to be as good as we could have expected in the circumstances. The CPS cannot decide unilaterally not to apply the law – quite rightly – and this law does exist. Whether it should exist, particularly in the form that it currently exists, is another matter entirely. Parts of the law do seem to be close to unfit for purpose in the age of social media: in my opinion they need to be reassessed with some degree of urgency
In particular, the Malicious Communications Act 1988 and Section 127 of the Communications Act 2003, together with the Part 1 of the Public Order Act 1986 need a much more careful examination. More intelligent, up-to-date and sensitive interpretation can only take us part of the way – and if the CPS fails to live up to the promises in this report it may not take us far forward at all. What’s needed, in my opinion, is a new look at the law itself. The social media is now of sufficient importance that it deserves this kind of attention. The guidelines talk relatively positively about the need to take freedom of expression into account – in the current age, the social media is a crucial element of that freedom of expression. that needs to be considered very seriously indeed.