Response to DPP Social Media Consultation - Article 19

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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
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Response to DPP Social Media Consultation - Article 19

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