Technology law specialist Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said that Director of Public Prosecutions (DPP) Keir Starmer was wrong to suggest that Twitter users with many 'followers' would be more likely to face prosecution over comments that breach the Communications Act than those with fewer followers.
Under section 127 of the Communications Act it is an offence if someone "sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
Starmer is drafting new guidelines for prosecutors on when it will be appropriate for them to bring criminal charges against individuals in connection with messages they post on social media platforms.
Starmer has suggested that the 'reach' of the messages posted on Twitter could be one of the factors prosecutors consider when determining whether to pursue legal action, according to a report by the Daily Telegraph. The DPP said that the decision whether to prosecute was currently being taken on a case-by-case basis, but said that that approach was becoming impossible due to the scale of the social media cases it may have to consider, according to the report.
“Millions of cases could potentially be put through our system, more cases than the combined number of every other offence on the statute book,” Starmer said, according to the Telegraph report.
However, Scanlon said that Starmer should focus on giving a clear definition on what is meant by a 'grossly offensive' message, under the Communications Act. He said that such guidance would help prosecutors determine when prosecutions were justified.
"It is understandable that the Director of Public Prosecutions has sought to limit the application of section 127 to messages that offend larger groups of people, but in my view this suggestion is incorrect in law, being inconsistent with the history of the provision and perhaps the established case law," Scanlon said. "The wording of section 127 dates back to 1935 and its use in relation to telephone communications. At that time it was obvious that the provision could be applied to a single person in a personal communication."
"The DPP's approach would suggest that different standards should be applied to different modes of communication and such inconsistency is fraught with danger," he added. "Although the Communications Act differs from its predecessors in that it relates to communications made by means of 'public electronic communications networks', there has never been any suggestion that this would mean that what is grossly offensive could be determined by the number of persons who were offended by it."
"The Paul Chambers 'blow up the airport' case heard before the High Court again made it quite clear that the courts are willing to find that public communications networks can include those operated by private companies such as Twitter, but this does not change the purpose of the provision", Scanlon said.
"The courts have often sought to steer away from determining the criminal liability of an individual on the basis of a variable contingency, such as the number of followers a Twitter account holder may have at any one time," the expert added.
"Clearly due to the recent public outrage concerning the application of the provision to communications made on Twitter, the DPP is looking to water down its effect. Unfortunately, though, if the CPS was to restrict the application of section 127 on this basis it would likely open itself up to much criticism. The same could be said for the provisions of the Malicious Communications Act," Scanlon said.
"A better approach for the DPP to take, and one which may be more consistent with the public's view of section 127, would be to focus on the nature of communication itself," he recommended. "The DPP could set a very high threshold as to what exactly may be considered a 'grossly offensive' communication. The phrase 'grossly offensive' is an ordinary English phrase that does not have any special legal content, as the courts have acknowledged, so the DPP guidelines could be justified in setting a very high threshold before taking action against a communication and deeming it a grossly offensive one."
When announcing the plan to devise new social media prosecution guidelines in September, Starmer said that the guidelines were needed in order to set "clear and consistent" rules governing prosecutors' actions in obtaining a criminal conviction against individuals that post offensive messages on Twitter, Facebook or other social media.
His move towards guidelines on the issue follows some high profile cases in which messages posted on social media have led the Crown Prosecution to take legal action against those responsible, and decide against similar action in other instances.
Starmer has suggested that the guidelines will require prosecutors to consider message authors' intent behind grossly offensive communications as well as the impact it has only those the messages are targeted at, according to the Telegraph's report.
"If you send a message to the family of April Jones one hour after they have been told their little girl is dead, that is very different to you sending an email to your mate,” the DPP said, according to the report.