Prosecutions of Social Media Users: Guidelines are on their way - and not before time.

New guidelines will soon be issued to clarify when prosecutions should be brought against people who have used social media to send grossly offensive messages.

Keir Starmer QC, the Director of Public Prosecutions, said that in the first instance interim guidelines will be issued. ‘There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible.’

Expressing the enormous difficulty facing the CPS in deciding when to prosecute, the DPP also called for an ‘informed debate about the boundaries of free speech in an age of social media.’

His statement accompanies his announcement that no prosecution is being brought against Daniel Thomas in respect of a homophonic twitter message he wrote relating to the British Olympic divers Tom Daley and Peter Waterfield.

Mr Starmer QC listed the following facts and matters as key to the decision not to prosecute Mr Thomas:

(a) However misguided, Mr Thomas intended the message to be humorous.

(b) However naive, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family.

(c) Mr Thomas took reasonably swift action to remove the message.

(d) Mr Thomas has expressed remorse and was, for a period, suspended by his football club.

(e) Neither Mr Daley nor Mr Waterfield were the intended recipients of the message and neither knew of its existence until it was brought to their attention following reports in the media.

These are completely rational and sensible factors. Context must be key, as the recent ‘Twitter Joke Trial’ farcical prosecution demonstrated. A message of a purely abusive nature must be treated differently to one that is (or attempts to be) humorous, ironic or meant to convey a legitimate political message.

The intended audience of the message is also a vital factor. Writing abuse about someone may be very unpleasant, but there is a distinction between simply writing the abuse to share with one’s social network and sending the abuse directly to the person concerned, which is likely to make them feel like a targeted victim.

Of course, in the social media world, even messages designed for micro-audiences can go viral. Azhar Ahmed was recently convicted for writing a grossly offensive facebook post about the death of British soldiers, even though he didn’t intend for it to be read by the bereaved families.

Any user of social media is aware of the possibility of ‘going viral’. So perhaps Daniel Thomas is lucky that the CPS weighed his naivety into their decision not to prosecute him.

If the intended audience is a relevant factor, it is inevitable that the guidelines will require prosecutors to take into account the number of followers/friends that a publisher has as well as their privacy settings (ie whether the message is available to the world at large) to determine whether a prosecution should be brought.

The swift removal of a message and a timely apology are also eminently sensible factors. If someone writes something offensive and it ‘goes viral’ their next move is relevant to their culpability. If they remove it – and express remorse, then social media has effectively self-regulated. However, if the user persists or responds by ramping up the amplitude of their abuse, then the criminal law may be needed to police the conduct. There may be some messages of such an obscene nature that an apology is not enough to avoid criminal proceedings, but such messages are likely to be extremely rare.

There is no doubt that offensive messages on social media are part of the zeitgeist. A few words written by one person on their phone can cause an outrage that leads the teatime news bulletins – and the coverage often seems highly disproportionate.

The criminal law must not become the tool of audiences who are easily offended. The DPP’s statement that the threshold required for a criminal prosecution must be very high indicates the CPS share that view.

It will be fascinating to see what the guidelines say. In the meantime, the decision not to prosecute Daniel Thomas for writing an offensive tweet must be welcomed.