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New Guidelines on Social Media Prosecutions

Following criticism of a number of recent arrests and prosecutions relating to postings on social media sites, the Director of Public Prosecutions  has published new draft guidelines. These confirm that postings that break criminal laws on threats, harassment and breaching court orders should generally be “prosecuted robustly” under the specific legislation for those crimes.

When considering the more general offence of improper use of a public electronic communications network under section 127 of the Communications Act 2003, the DPP points out that a communication will only break this law if it is grossly offensive. This high threshold for criminality requires a communication to be more than offensive, shocking, disturbing, rude or distasteful. The DPP also notes that it may not be in the public interest to prosecute where a communication was not intended for a wide audience, or where swift action was taken either by the author or others, such as service providers, to remove access to it.

Postings on social network sites may also, of course, breach the civil law, which is not affected by these guidelines.

Comment on the new guidelines seems generally favourable (e.g. from Paul Bernal), but also questions whether the broad s.127 offence (which apparently originates in a law to protect telephone switchboard operators) is still appropriate for the widely available mass publication offered by the Internet.

By Andrew Cormack

I'm Chief Regulatory Advisor at Jisc, responsible for keeping an eye out for places where our ideas, services and products might raise regulatory issues. My aim is to fix either the product or service, or the regulation, before there's a painful bump!

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