UK: Social media guidelines for prosecutors welcomed but practical application remains to be seen
19 Dec 2012
ARTICLE 19 welcomes the interim guidelines outlined by the Director of Public Prosecutions on how prosecutors should deal with comments made using social media.
“A common sense approach to this issue is sorely needed in the UK. We have seen a number of recent arrests and prosecutions over complaints about what is said online. It’s absolutely right that there is a high threshold for any prosecution. The criminal law should be the last resort to restrict freedom of expression, including online speech. It is not the role of prosecutors to respond to the mood of the public, but to make decisions on a case-by-case basis, taking into account all the relevant factors, including the context and impact on freedom of expression. We will watch to see how a new set of guidelines is implemented, the proof of the pudding is in the tasting” said Agnes Callamard, ARTICLE 19’s Executive Director.
“The right to freedom of expression, as set out in international law, protects speech that might be found by some people as upsetting or insensitive. Causing offense, showing poor judgement or expressing views which people find to be in bad taste should not amount to criminal prosecution. A society that allows public debate and criticism, no matter how much that might offend sensibilities, is a healthy one” added Callamard.
ARTICLE 19 have been actively involved in discussions about the proposed guidelines and will be responding in full to the consultation.
ARTICLE 19 will give close attention to the role played by intermediaries (including internet service providers and social media platforms) in the regulation of online speech. Online providers must not censor legitimate free speech.
ARTICLE 19 will continue to closely monitor how any new guidelines are implemented.
Why the guidelines are needed
The UK has a bad track record for prosecuting for ‘offensive’ comments made using social media. There have been too many cases where speech has led to criminal charges.
§ Police arrested a man in November for posting a picture of himself burning a poppy on Facebook, that was accompanied with offensive text referring to the armed forces.
§ In October a man who posted an offensive Facebook message following the deaths of six British soldiers in Afghanistan was given a community order. Azhar Ahmed was found guilty of sending a grossly offensive communication for a message which said “"all soldiers should die and go to hell."
§ Also in October. Matthew Woods was jailed for 12 weeks for posting comments about missing schoolgirl April Jones on his Facebook page
The legal context
Section 127 of the Communications Act 2003 prohibits any message sent “by means of a public electronic communications network” which is “grossly offensive or of an indecent, obscene or menacing character".
ARTICLE 19 is concerned that whilst the guidelines are needed, it remains to be seen how prosecutorial discretion about what is beyond acceptable will be used in this new context.
The guidelines go some way to addressing this issue, but a review of the law is necessary to provide a sustainable legal solution to criminal complaints about online speech.
International law is clear that restrictions to speech can only be made in very strict circumstances.
Any restriction of free expression must be provided for by law. This means that:
§ There must be a piece of legislation enacted by a competent body
§ The law must be as clear and as precise as reasonably possible, so that citizens know in advance exactly which expressions are prohibited.
Any restriction must pursue a legitimate aim. The list of aims in Article 19(3) of the ICCPR is exclusive and includes:
• Respect of the rights or reputations of others
• Protection of national security, public order, or of public health or morals.
The restriction must be necessary in order to secure one of these aims. The word ‘necessary’ in Article 19(3) is understood to have a number of implications. To justify any measure which interferes with free speech:
• A government must be acting in response to a pressing social need, not merely out of political convenience
• The restriction must impair the right as little as possible and in particular, must not be overly broad or restrict legitimate speech
• The impact of the restriction must also be proportionate. The harm to freedom of expression must not be greater than the benefit to the interest which is being protected.