Final guidance on social media prosecutions unveiled

Offensive messages on social media should only lead to prosecution in extreme circumstances, the Director of Public Prosecutions (DPP) has said.

Following a three-month consultation, Keir Starmer unveiled the final guidance on prosecutions based on social media communications, which recommends a “high threshold” for pursuing action in cases where “grossly offensive, indecent, obscene or false” messages are sent.

The Crown Prosecution Service (CPS) guidance acknowledges the sheer mass of social media messaging, and the consequent challenges for law enforcement agencies, but urges prosecutions should elements of hate crime, harassment of individuals or stalking be involved and if the communication “might constitute a credible threat”. It sought to clarify the factors that make prosecution in the public interest under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003.

Claiming the guidance aims “to strike the right balance between freedom of expression and the need to uphold the criminal law” and allow prosecutors to make “fair and consistent decisions”, Mr Starmer said there was “wide public support” for the CPS’ proposals, adding early consultation between the police and prosecutors was advisable.

“Millions of communications are sent via social media every day, and prosecutors must be equipped to deal appropriately and consistently with cases arising from the growing use of these new ways of communicating,” he said.

“Having considered the consultation responses, and our experience of dealing with these cases in recent months, I believe the guidelines do set out the right approach to prosecution by making the distinction between those communications that should be robustly prosecuted, such as those that amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders, and those communications which may be considered grossly offensive, to which the high threshold must apply.

“These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful.”

Andy Trotter, chief constable of British Transport Police and national policing lead for communications, said the CPS guidance gave “clear advice” on handling complaints, but would not prevent officers from seriously investigating potential crimes, and warned members of the public to watch what they say online.

“Many grossly offensive, indecent and obscene comments are made every day on social media and can cause great distress and harm to those individuals who are targeted,” he said.

“People have a responsibility to keep their comments on social networks within the law. If they do not then they will be robustly investigated.”