There has been such an increase in people being arrested for offensive social media posts that the most senior prosecutor in England and Wales, DPP Keir Starmer, is issuing new guidelines for prosecutors. He is currently consulting with lawyers, journalists and police in a series of seminars on the subject, according to an article in yesterday's Guardian.
Section 127 of the 2003 Communications Act makes it an offence to send or post "grossly offensive" material online, and what makes online content 'grossly offensive' which Starmer is seeking to address. Prosecutors need guidelines to know how to handle these online offences in order to know what the boundaries for prosecution are.
In a recent interview for the BBC, Starmer makes it clear that the threshold should be raised, but that context is all in determining what is grossly offensive. What was said and to whom, how many people heard it, how long up the post was up for, was it meant as joke, how long after the event was it posted ... all these factors ill shape how the offence should be viewed and punished. The DPP also said that the feelings of the victim, if appropriate, should be taken into consideration - for example, Tom Daley (see the example below) didn't think a prosecution was necessary.
Recent cases:
- Azhar Ahmed wrote a Facebook post saying "all soldiers should die and go to hell" following the deaths of six British soldiers. He was was sentenced this week to 240 hours of community service.
- Matthew Woods was jailed for 12 weeks this week for posting jokes on his Facebook page about the missing children April Jones and Madeleine McCann. He had to be arrested for his own safety after mobs surrounded his home. The sentencing judge said: "The reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive."
- Daniel Thomas posted homophobic messages on Twitter relating to the Olympic diver Tom Dale. He wasn't prosecuted, because he apologised quickly, deleted the message, and said he did not intend it to be retweeted as widely as it was.
- Last month Neil Swinburne was arrested for allegedly setting up a Facebook site praising murder suspect Dale Cregan.
- In July Paul Chambers eventually had his conviction overturned, in the infamous Twitter joke trial. He had tweeted: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!" in frustration about his local airport in South Yorkshire being snowbound.
According to those attending the panels, Keith Starmer is keen to explore whether Facebook and Twitter should take more responsibility for policing their networks for abuse and harassment. He clearly feels that damage would be limited and police time saved if pages and posts were taken down more quickly, and accounts deleted.
Twitter declined to comment to The Guardian on individual cases and Starmer's work directly. But although in general the network has a free speech policy, according to the paper it did recently change its rules to make "direct, repeated attacks on an individual a possible violation" of its terms of service (although I haven't found this reference myself in the Twitter Terms of Service).
Facebook relies on users reporting offensive posts via the onsite reporting mechanisms. Facebook has said it takes down pages "very quickly", although it does not supply any details of how many complaints it gets in the UK, or how fast it works.
Meantime, in The Telegraph, @brokenbottleboy debates where the line should be drawn between what is broadcast as a risqué, potentially offensive joke by a personality such as comedian Frankie Boyle, and the kind of crass attempt at humour which has landed teenager Matthew Woods in jail. It's not fair, he argues. Boyles' offensive tweets are his stock in trade. Should Woods have given his profession as "resting" comedian rather than unemployed? Surely the fact that Boyles has a wider audience and the endorsement of public standing should give his tweets - and therefore his offence - more weight rather than less?
Offline offences - arguably a great deal more damaging - are escaping with lesser punishments. On the same day as Woods' conviction, and in the same court, a man who racially abused a woman in public was ordered to pay a £100 fine and a further £100 in compensation to his victim. It seems very little by comparison. Yesterday, the presenter Justin Lee Collins was found guilty of sustained "campaign of abuse" to his ex-girlfriend, but was only sentenced to 140 hours community service and an order to pay £3,500 costs.
There is a clear danger that what is said online being taken more seriously than what is said in print, on television or in the pub. Is this because of the viral spread of online content?
There are many questions which I am imagining the UK DPP will be attempting to answer in his consultations this week. Where should the responsibility for publication lie? Solely with the poster or does the platform share culpability? Are offences such as Woods' taken more seriously because of the mood of public outrage? Is it the offenders' fault if an ill-judged tweet to a network of 100 followers is re-tweeted to millions? Should a Twitter user with a following of 30,000 be held more accountable that a person who directly talks to only 20 close friends? And perhaps most importantly - who should be the arbiter of what is funny? The police, the public - or the publishing platform?