Interim guidelines on prosecuting cases involving communications sent via social media

Consultation Response

Response Pro Forma

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Response Sheet

Contact details: Please supply details of who has completed this response.

Response completed by (name): Robert Sharp

Position in organisation (if appropriate): Head of Campaigns & Communications

Name of organisation (if appropriate): English PEN

Address: Free Word Centre 60 Farringdon Road LONDON EC1R 3GA

Contact phone number: 020 7324 2535

Contact e-mail address: enquiries@englishpen.org

Date: 12/03/2013

Please answer the consultation questions in the boxes below.

1. Do you agree with the approach set out in paragraph 12 to initially assessing offences which may have been committed using social media?

We agree that assessing cases according to the guidelines is appropriate. However, we are concerned that offences that fall under (3) should not necessarily be subjected to ‘robust’ prosecution. As with the ‘offensive’ messages that fall under (4) there will be Article 10 and public interest considerations to take into account before proceeding to prosecution.

For example, following the use of the ‘super-injunction’ procedure by the Dutch multinational Trafigura in October 2009, and its subsequent legal threats to the Guardian newspaper, many hundreds of people publicised details of the Trafigura case online via social media, and blogs. While such publications would have been a breach of a court order, it would have been inappropriate and not in the public interest to ‘robustly’ prosecute such publishers.

2. Do you agree with the threshold in bringing a prosecution under section 127 of the Communications Act 2003 or section 1 of the Malicious Communications Act 1988?

We applaud the strong defence of free expression outlined in the guidelines. The references to Article 10 and free expression jurisprudence in paragraphs 30-33 set a welcome context for any decisions made by prosecutors in this area.

However, we remain concerned by the term ‘grossly offensive’ as a trigger for prosecution, and what the criteria will be for prosecutors in distinguishing between content that is ‘offensive’ and ‘grossly offensive’ or for deciding what is ‘more than … shocking or disturbing; or satirical, iconoclastic or rude comment’. t is also open to exploitation and abuse by any person or group who cares to declare themselves offended. For example, when Azhar Ahmed was arrested for posting offensive messages about dead British soldiers in Afghanistan, a group of far right activists picketed the magistrates court to demonstrate the level of their offence.

As has been seen with the use of the world ‘insulting’ in Section 4, 4A and 5 of the Public Order Act 1986, it is to be expected that special interest groups will routinely use the law in order to suppress communications they wish to censor.

We consider it likely that religious groups will claim that blasphemous text or images meets the ‘grossly offensive’ benchmark. Likewise, criticism of the armed forces, and denigration of poppies or flags, is likely to be considered as ‘grossly offensive’ by the tabloid media and others. It is therefore possible that the police and prosecutors will find themselves under pressure from a coordinated campaign (by the tabloid media, or special interest groups) to make a decision to prosecute, even though the principles of free expression outlined in the draft guidelines would clearly apply.

We believe that the DPP’s recent contribution to the question of whether to remove the word ‘insulting’ from Public Order Act 1986 may be instructive in developing these guidelines. In a letter to Lord Dear1 in December 2012, the DPP wrote:

„…having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as “abusive” as well as “insulting”.‟

Prosecutors could apply a similar principle when considering messages posted on social media. If the messages could not properly be characterised as ‘abusive’, ‘harassing’, or ‘threatening’ as well as ‘grossly offensive’ then there should be no prosecution.

1 http://reformsection5.org.uk/2012/12/director-of-public-prosecutions-says-it-is-safe-to-

remove-the-word-insulting-from-section-5/

3. Do you agree with the public interest factors set out in paragraph 39?

We have concerns that paragraph 39(2) of the guidelines may encourage censorship by operators of websites. An over cautious internet service provider, forum operator or platform provider may remove material, making a subjective judgement that the content is obscene or grossly offensive.

This paragraph also opens up the possibility that someone who has been offended by something written online may seek to complain directly to the web host, citing these prosecution guidelines as a reason to remove content. For many web hosts, the easiest and cheapest action will be to comply with this request. The practice of complaining to an intermediary is a form of ‘privatised censorship’ which short-circuits the criminal and judicial process.

We would also urge the inclusion of a fifth criterion, which makes explicit that content of a satirical, political or artistic nature should be protected from prosecution. We draw attention to the wording of Part 29J of the Schedule2 to the Racial and Religious Hatred Act 2006:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions …”

2 http://www.legislation.gov.uk/ukpga/2006/1/schedule

4. Are there any other public interest factors that you think should also be

included?

We strongly welcome the emphasis placed on freedom of expression in these guidelines.

We remind the Director of Public Prosecutions and the Crown Prosecution Service of the example set by the British parliament and courts, for other jurisdictions. Commonwealth countries that share a legal history with the UK may follow the CPS’s lead on these issues. The case law and jurisprudence developed in this country will be cited in cases around the world.

The prosecutions in 2010 of Paul Chambers, and the prosecution in 2012 of Liam Stacey, Azhar Ahmed, Matthew Woods and Sam Busby for what they have written on social networks, have set an unfortunate international example. These prosecutions allow other countries with less respect for human rights to claim parity with the British system. English PEN has recently campaigned on behalf of Hamza Kashgari3 (Saudi Arabia) and Fazıl Say4 (Turkey), both of whom face trial for messages posted on Twitter. By local standards and mores, the messages posted by both Kashgari and Say could be considered ‘grossly offensive’ to sections of the population. The previous prosecutions, and the inclusion of the subjective ‘offensive’ criteria in these guidelines, would appear to justify the deeply illiberal approach taken in Saudi Arabia, Turkey and elsewhere.

The DPP and the CPS should also be mindful that all the Acts of Parliament discussed in the consultation predate the rise of social networks. Social media is a hybrid of one-to-one communication and one-to-many publishing. Applying laws designed for one technology to other media, runs the risk of a category error and disproportionate prosecution.

In particular, it should be noted that to send someone a message by older communications technologies, a person must dial a telephone number, enter a fax number, or type an e-mail address. There can be no dispute that the sender intended the recipient to receive the message. This certainty evaporates when social media is considered.

3 http://www.englishpen.org/tag/hamza-kashgari/

4 http://www.englishpen.org/tag/fazil-say/

5. Do you have any further comments on the interim policy on prosecuting

cases involving social media?