The Crown Prosecution Service (CPS) has issued new guidelines setting out the approach courts and police forces should take in cases involving social media. The new rules are described as ‘interim’ and will be accompanied by a three month public consultation period.
My worry is that while a lot of consulting may go on the rules won’t get stress tested – or stress tested enough – through prosecutions in that time. Lots of talk. Very little test driving. Personally, I wouldn’t buy a car built this way.
But if that’s the way it’s got to be it behooves all of us to get out there and kick the tyres on this one.
The Director of Public Prosecutions, Keir Starmer QC, is drawing a distinction between two types of ‘communication’:
- Credible threats of violence, targeted campaigns of harassment against individuals, or which breach court orders.
- Other communications which are ‘grossly offensive’.
Quoted in the CPS blog he states: “The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold”.
Even then, this second group may escape the courts if the offensive communication is taken down swiftly, or blocked. That sounds fine in principle but it’s the nature of such remarks to go viral at hyper-speed, given the sharing tools that accompany social media. If I retract something swiftly but it has already been widely disseminated by others, how does that work? The Saville/McAlpine case speak to this very clearly.
What will ‘grossly offensive’ actually mean?
The emphasis seems to be on the protection of the individual. Again the question is how prosecutors might weight ‘grossly offensive’ and whether the cult of celebrity might have undue influence.
A schoolgirl trolled by a handful of individuals may be more deeply hurt than a top footballer who finds allegations of sexual indiscretion bandied about the Twitter streams of millions.
Celebrities, or other high ranking, high net worth individuals, also have more ways of protecting themselves and can, for example, fund redress through the civil courts.
The individual versus the organisation
The guidelines are not designed to prevent freedom of expression but even that opens up a can of worms.
Is the harassment of an individual somehow more heinous than the harassment of an organisation?
Can I say something offensive about a hamburger chain but not lay the same claim against an individual employee?
And would the level of offense be viewed differently if the employee was a humble burger flipper as opposed to a senior executive?
This is the kind of stuff that keeps me awake at nights. It’s the guidelines around ‘grossly offensive’ which are liable to require the most decoding. The police and the courts would need to be satisfied that the communication in question was more than:
- iconoclastic (this one alone is a veritable minefield)
- an expression of unpopular or unfashionable opinion
- banter or humour, ‘even if distasteful to some or painful to those subjected to it’.
The interim guidelines don’t change the law but do, in effect, lay a pre-formed interpretation upon it. I don’t doubt the smarts of the people who came up with this but I do worry that their direct experience of social media might be… limited.
The approach they set out takes effect from today, so let’s take a real interest in what happens and bring our own understanding of social media into play when it comes to what the final guidelines might look like.
If I have a concern about the consultation process itself it’s that there seems to be a desire to focus responses on the specific framing of the interim guidelines rather than encouraging broader observations on the challenges involved in ‘policing’ social media and our protection both from it and as part of it.
By that I mean looking at what’s required to both protect our rights to speak up as well as protect our rights not to be shouted down or maligned.
There’s a kind of catch all ‘further comments’ question at the end on the consultation document, but that’s as far as it goes.
But for goodness sake get involved – whether you’re an individual or an organisation.
- Details about the public consultation are available on the CPS website
- The consultation closes on March 13 2013.
- You can find the guidelines here