New guidelines could see fewer people being charged in England and Wales for offensive messages on social networks.
The legal guidance published by Keir Starmer, Director of Public Prosecutions, has a bit of ‘Shades of Grey’ about it. While there is general acceptance that a new interpretation of the Communications Act was overdue, this attempt to draw a line in the sand inevitably leaves a great deal to interpretation. This is not because the DPP has not done a good job but because, by its very nature, social media is ephemeral and cannot be dealt with by the same black and white legislation that governs print or broadcast media.
One of the grey aspects of the guidance that presents a problem is that of semantics: when is something obscene and when does it become ‘grossly’ obscene. The difference is crucial and the guidance itself admits that ‘context is important’. Inevitably this means that reasonable interpretation of the law relies heavily on the experience, intelligence and social sensitivity of those involved in the Crown Prosecution Service.
Facebook appeared in February 2004 and Twitter in March 2006, three years after the Communications Act itself. Yet these individuals are supposed to be able to steer the difficult course between on the one hand permitting freedom of speech and on the other, prosecuting those who send messages that are ‘grossly offensive or of an indecent, obscene or menacing character.’
Some aspects of the legislation are more black and white than others. For example, where a crime has been committed, which is then reported through a social media channel, it is the crime itself that will be dealt with, not the fact that it was broadcast. Likewise, anyone reporting the identity of a rape victim or child witness from court would face prosecution because that in itself is illegal. Where there are laws dealing with harassment, stalking or violent threats, these apply to those sending or re-tweeting electronic messages. There are, however, areas that are less distinct and three recent cases highlight the difficulty of interpreting the law.
When Matthew Woods posted offensive comments about missing Madeleine McCann he was sentenced to twelve months in prison but when Azhar Ahmed urged Muslims to celebrate the deaths of six British soldiers he received a fine. Homophobic tweets concerning Olympic diver Tom Daley were meanwhile not considered to be ‘so grossly offensive that criminal charges should be brought.’
Whether the DPP’s new guidance will help the Crown Prosecution Service and the judiciary in deciding what constitutes a ‘grossly’ offensive message is debatable. Social media does not fit neatly into the legal framework that applies to newspaper or television. It is more akin to someone yelling across a crowded room and the grey area will always be whether the same offensive comment posted on Twitter by the same drunk should be considered more seriously than the verbal remark, especially if he apologises afterwards.