Response to DPP Social Media Consultation - Article 19

The consultation processANNEX AThe purpose of this consultation is to seek a range of views on the InterimGuidelines on prosecuting cases involving communications sent via SocialMedia.We welcome your comments by no later than 13 March 2013.Questions for consultationWe have identified a number of questions which are outlined at the end of theConsultation Paper on which we would particularly invite comment.If you are replying by email, we should be grateful if you would not attach anyother documents to the consultation paper. There are limits on the size ofdocuments that we are able to accept and any completed consultationdocument which has an attachment runs the risk of not being delivered. If youwish to send an attachment to us, please email us separately atsocialmedia.consultation@cps.gsi.gov.uk.If you use a special software program to read the Consultation Document andyou find that you have difficulty in reading it, please get in touch with theTeam whose contact details are set out in the How to Respond section.If you would like to return your replies to the question at the back of theConsultation Document by post, please download the Interim Guidelines inPDF format.Alternatively, you can read the draft Interim Guidelines on the CPS website.How to respondBoth written and electronic responses to the consultation are acceptable,although we would prefer electronic replies on the completed pro-forma.1

Please be aware that if you complete and return this document by email, youwill be responding over the open internet. If you would prefer, pleasecomplete and return the PDF version to the postal address given below.Please include your name, organisation (if applicable), postal address andemail address.Closing date for responses: 13 March 2013Responses can be sent by post to:Interim Guidelines on Social Media Consultation TeamStrategy and Policy DirectorateCrown Prosecution Service9th FloorRose CourtSouthwark BridgeSE1 9HSor by email to: socialmedia.consultation@cps.gsi.gov.ukWelsh language documentsThe following consultation documents are available in Welsh language:• Download the consultation document on interim guidelines onprosecuting cases involving communications sent via social mediaconsultation document in Welsh (Adobe PDF document - 230kb)• Dadlwythwch y ddogfen ymgynghori ynglŷn â cyfarwyddiadau interimErlyn achosion sydd yn gysylltiedig a chyfryngau cymdeithasu (DogfenPDF Adobe 79kb)• Download the consultation response document in Welsh (MicrosoftWord file, 34kb).• Dadlwythwch y ddogfen ymateb Gymraeg ynglŷn â'r ymgynghoriad(Dogfen Microsoft Word – 71kb)2

Alternative formatsIf you require a copy of this Consultation Paper in any other format, forexample, audio or large print, please contact the postal address above.Next stepsWe will consider every individual response received. A summary of theconsultation responses will be published on the CPS website in accordancewith the Government's guidelines.Responses: Confidentiality and disclaimerThe information you send us may be passed to colleagues within the CPS,the Government or related agencies. Furthermore, information provided inresponse to this consultation, including personal information, may bepublished or disclosed in accordance with the access to information legislationincluding the Freedom of Information Act 2000 (FOIA).If you want the information that you provide to be treated as confidential,please be aware that, under FOIA, there is a statutory Code of Practice withwhich public authorities must comply and which deals, amongst other things,with obligations of confidence. In view of this it would be helpful if you couldbriefly explain to us why you regard the information you have provided asconfidential. If we receive a request for disclosure of the information we willtake full account of your explanation, but we cannot give an assurance thatconfidentiality can be maintained in all circumstances. An automaticconfidentiality disclaimer generated by your IT system will not be regarded asbinding on the CPS.Please ensure your response is marked clearly if you wish your response andname to be kept confidential. Confidential responses will be included in anystatistical summary of numbers of comments received and views expressed.The CPS will process your personal data in accordance with the DataProtection Act 1998 - in the majority of circumstances this will mean that yourpersonal data will not be disclosed to third parties.3

Government Consultation PrinciplesThe key Consultation Principles are:• departments will follow a range of timescales rather than defaulting to a12-week period, particularly where extensive engagement hasoccurred before;• departments will need to give more thought to how they engage withand consult with those who are affected;• consultation should be 'digital by default', but other forms should beused where these are needed to reach the groups affected by a policy;and• the principles of the Compact between government and the voluntaryand community sector will continue to be respected.The complete Consultation Principles are available from the Cabinet Officewebsite.4

Response Pro FormaWhen responding it would helpful if you would complete this pro forma.Please fill out your name and address or that of your organisation if relevant.You may withhold these details if you wish but we will be unable to includeyou in future consultation exercises.Response SheetContact details:Please supply details of who has completed this response.Response completed by (name):Gabrielle GuilleminPosition in organisation (if appropriate):Legal OfficerName of organisation (if appropriate): ARTICLE 19Address:60 Farringdon RoadLondon EC1 3GAContact phone number: 020 7324 2513Contact e-mail address:gabrielle@article19.orgDate: 12/03/20135

Please answer the consultation questions in the boxes below.1. Do you agree with the approach set out in paragraph 12 to initiallyassessing offences which may have been committed using social media?ARTICLE 19 generally welcomes the DPP’s guidelines, which provide a greater degree of clarity andpredictability regarding the prosecution of offences involving social media. In particular, the decisionto prioritise the prosecution of credible threats of violence (category 1) and harassment (category 2)is both sensible and uncontroversial. In this regard, we also support the guidelines’ approach whichmakes clear that as a rule, these types of cases should be prosecuted under the Offences Against thePerson Act 1861 or the Protection from Harassment Act 1997, rather than the Communications Act2003.We note, however, that the guidelines could be further improved by clarifying that bullying online isnot as such a criminal offence although it may amount to an offence under the 1861 Act or the1997 Act provided the relevant threshold is met. We also note that further clarity would also behelpful in relation to the question of who "may reasonably expected to see" a message within the testof 'menacing character' set out by the Lord Chief Justice in Chambers v DPP [2012] EWHC 2157(Admin) at para 30, since a message sent or posted to a select audience may very easily be reposted,linked or forwarded to the world at large. The guidelines should stress the importance of takingaccount of the initial context in which a message was sent, including the reasonable expectation ofthe original author that his or her message should only be read by the audience he or she intended.Despite the generally positive features identified above, we also remain concerned that theguidelines concerning grossly offensive, indecent, obscene or false communications (category 4) areinsufficiently detailed to help social media users determine whether they may be at risk ofprosecutions for comments made on social media sites (See question 2).2. Do you agree with the threshold in bringing a prosecution under section127 of the Communications Act 2003 or section 1 of the MaliciousCommunications Act 1988?At the outset, ARTICLE 19 would emphasise that both Section 127 of the Communications Act2003 and Section 1 of the Malicious Communications Act 1988 are drafted in extremely broadterms. It is therefore highly questionable that they meet the requirement of legal certainty underARTICLE 10 European Convention on Human Rights (ECHR) and Article 19 of the InternationalCovenant on Civil and Political Rights (ICCPR). As the European Court has repeatedly emphasised, itis not sufficient for an interference with the right to freedom of expression to have a basis indomestic law. The law itself must correspond to certain requirements of “quality”. In this regard theCourt has said that:‘A particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precisionto enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice –to foresee, to a degree that is reasonable in the circumstances, the consequences which a givenaction may entail’ (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos.21279/02 and 36448/02, § 41, ECHR 2007‐XI).Accordingly, ARTICLE 19 believes that the better approach would be for prosecutors not to rely onthe above provisions. There is nothing exceptional about not enforcing criminal laws on the statutebook where it is not in the public interest to do so: see e.g. Lord Scott in R v Attorney General ex6

parte Rusbridger [2003] UKHL 38 at para 40: "No Attorney General or Director of PublicProsecutions would or could authorise a prosecution [under section 3 of the Treason Felony Act1848] for [peacefully advocating the abolition of the monarchy] without becoming a laughing stock".Similarly, when Parliament considered whether or not to abolish the offence of blasphemy, it wasnoted that there had not been a public prosecution for blasphemy since 1922 (see House ofCommons Library, The Abolition of Blasphemy Offences, SN/PC/04597, 9 May 2008, at page 18).The Criminal Justice and Immigration Act 2008 subsequently abolished the offence of blasphemy in2008. Similarly, there were very few prosecutions in the last century for sedition until the offencewas abolished in 2010 (see Hansard, 9 july 2009, Column 844).If, contrary to our recommendation, prosecutors continue to enforce the above provisions, ARTICLE19 agrees that the threshold for such prosecutions should be a very high one. While the explanationcontained in paragraphs 30 to 36 goes some way towards clarifying what that may entail, we remainconcerned that: (1) ‘grossly offensive’, ‘indecent’ and ‘obscene’ are eminently subjective terms whichcan be interpreted in any number of different ways; and (2) it is equally unclear what “more than”grossly offensive, obscene etc means. In other words, the threshold for category 4 communicationsprosecution still lacks foreseeability.It would therefore be helpful if the guidance could provide practical examples of the types ofcircumstances in which a social media user may be prosecuted for category 4-types ofcommunications. We further draw attention to the Twitter Help Centre’s guidance on offensivecomments, which provides further additional elements that prosecutors should consider whenexamining category 4-type of communications, such as the timeline of tweets:https://support.twitter.com/articles/20170133-offensive-content-consider-the-context.3. Do you agree with the public interest factors set out in paragraph 39?ARTICLE 19 welcomes the attempt to identify circumstances in which a prosecution is unlikely to benecessary and proportionate. We broadly support the public interest factors set out in paragraph 39.We do, however, have serious reservations about criteria 39 (a) and (b), which in our view could havean inadvertent chilling effect on freedom of expression. In particular, criterion 39 (a) couldencourage self-censorship of social media users as long as it remains unclear what ‘more than’grossly offensive, obscene etc. communications means. The law should not give incentives to peopleto apologise or retract what they may legitimately express under the law.Similarly, criterion 39 (b) could have the effect of encouraging service providers such as Facebook toremove perfectly legitimate - albeit distasteful - comments, when they feel there may be a risk ofprosecution against their users. This is particularly important given that intermediaries are likely tobe the first port of call for any complaint or enforcement action. It is also unclear how such ‘swiftand effective action’ would take place. In particular, we are concerned that this may be interpretedas giving a licence to police and prosecutors to request intermediaries and social media platforms(such as Facebook or Twitter) to remove communications which are distasteful or obnoxious but fallbelow the threshold for prosecution.In relation to criterion 39(c), while we strongly support the general thrust of this provision, theconcept of an 'obvious consequence of sending the communication' is problematic. As we noted inour answer to question 1, the nature of modern communications makes it very easily to link, forwardor repost messages intended for a narrow audience to the world at large. To impose criminalsanctions upon the original author of a message on this basis alone would, in our view, breach both7

Articles 8 and 10 ECHR and Article 19 of the ICCPR.Finally, we wonder whether it is necessary to include the consideration at paragraph 39(d) that “thecontent of the communication did not obviously go beyond what could conceivably be tolerable oraccepted in an open or diverse society which upholds and respects freedom of expression.” We cansee the benefit of including a public interest factor, which reinforces the high threshold forprosecution. On the other hand we consider that the relationship between this factor and the “morethan” threshold test might be unclear to prosecutors and police. Disagreement and inconsistencycould arise if some relied on the test of whether the comment was “more than offensive, shocking ordisturbing...” and others relied instead on the test of whether the comment “obviously goes beyondwhat could be conceivably tolerable or acceptable in an open and diverse society etc.”4. Are there any other public interest factors that you think should also beincluded?In determining whether a prosecution is both necessary and proportionate, ARTICLE 19 fullysupports the additional factors identified by Alex Bailin QC and Edward Craven on the Inforrm blog,namely:• Whether the message is intended to be humorous: we consider that it is necessary to take thisfactor into account to ensure that prosecutions such as that in the ‘twitter joke trial’ of PaulChambers v DPP do not take place in future. This factor has moreover been taken intoaccount in the case law of the European Court of Human Rights. In Nikowitz v VerlagsgruppeNews GmbH v Austria, 1 the Court gave consideration to whether the statement “remainswithin the limits of acceptable satirical comment in a democratic society” (paragraphs 25-26).• Whether it is a first time offence: a prosecution is more likely to be in the public interest ifthe suspect has already been convicted for sending communications of a similar nature in thepast. In the vast majority of cases, a warning would be more appropriate.• Whether there are concurrent civil proceedings being brought: this is consistent with theapproach of the European Court of Human Rights. In Raichinov v Bulgaria, 2 for example, theCourt noted that “the assessment of the proportionality of an interference with (Article 10)will in many cases depend on whether the authorities could have resorted to means otherthan a criminal penalty, such as civil and disciplinary remedies” (para 50).5. Do you have any further comments on the interim policy on prosecutingcases involving social media?1 (no 5266/03, 22 Feb 2007) 2 No 47579/99, 20 April 2006 8

ARTICLE 19 supports the approach of the guidelines that comments sent via social media should notbe dealt with as public order cases since the Public Order Act was intended to deal with cases wherethe defendant and victim have interacted on a face to face basis.Similarly, we believe that the age and maturity of suspects are very important factors, which shouldbe given significant weight in the context of social media communications.ARTICLE 19 further considers that due to the frequency of cross-jurisdictional communications viasocial media, the interim guidelines could usefully clarify this issue. Given the limited resources ofthe CPS, as a matter of practicality we conclude that communications via social media should onlybe prosecuted in the UK if both the defendant and the victim are within the UK.We would also welcome the development of a more coherent policy on sentencing for offencescommitted through social media. Much of the media attention regarding prosecutions forcommunications sent via social media has been focused on the inconsistency of the approach takentowards sentencing. Cases which demonstrate this inconsistency in particular are the contrastbetween the case of Matthew Woods who in October 2012 was sentenced to 12 weeks imprisonmentfor “jokes” on Facebook about missing 5 year old April Jones 3 with the case of Azhar Ahmed who inOctober 2012 was sentenced to 240 community service for posting a message on Facebook aboutthe deaths of soldiers, writing that “all soldiers should die and go to hell” 4 . These sentences alsostrongly contrast with the fine of £624 imposed on nine individuals who named and condemned arape victim on Twitter as “crying rape” and “money grabbing”. 5In particular, it might be useful for sentencing guidelines to address whether the public policyfactors in the interim guidelines, such as “whether the suspect has expressed genuine remorse”should also be taken into account to affect the severity of sentencing. This might be useful toprosecutors who are used to taking into account this factor at the sentencing stage in other criminalcontexts.3 http://www.mirror.co.uk/news/april-­‐jones-­‐man-­‐charged-­‐over-­‐1365779. 4 http://www.bbc.co.uk/news/uk-­‐england-­‐leeds-­‐19883828 5 http://www.bbc.co.uk/news/uk-­‐wales-­‐north-­‐east-­‐wales-­‐20207408 9