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Communication laws: we need change now

OPINION: Much has been made of the decision not to prosecute Daniel Thomas for the offensive tweet he sent to Tom Daley. And it has also only been a few months since the High Court dismissed charges against Paul Chambers for tweeting that he would 'blow the airport sky high.' 21 Sep 2012

For many the hype surrounding these events suggests that communication laws are in a state of confusion. And it seems that the director of public prosecution has recognised this, announcing that he intends to issue new guidelines to assist prosecutors determine what is and what is not acceptable on social media.

The proposed guidelines should focus on whether a communication is threatening in nature, intimidating or incites violence or harm to others. They should not encourage criminal charges to be laid against social media statements that are offensive but not otherwise of this character.

But the difficulty the public prosecution's office faces in taking this approach is that under current laws communications that may result in actual harm are given equal treatment to those that are offensive, if the offence caused is 'gross' enough.  

Although what some may consider to be an abusive communication can amount to a number of criminal acts under different laws, it is the Communications Act 2003 that is at the centre of social media controversies.

The Communications Act 2003 makes it a criminal offence to send an electronic communication which is 'grossly offensive, obscene, indecent or menacing' in nature. Obviously, these concepts are highly subjective and vary in meaning from person to person.

It is interesting that even the UK courts, when having been given the opportunity, have refused to explain further what is meant by the term 'grossly offensive' or provide any practical legal tests that can be used to determine what level of obscenity or indecency is necessary before a communication can be considered a criminal act.

Of course, it is very difficult for a judge to make a call on what is 'grossly offensive', obscene or indecent. Inevitably we are all influenced by personal circumstance and belief.

It seems though that from the few comments the director of public prosecutions has made in relation to the new guidelines, the focus for prosecutors will now be more on whether or not a communication falls within the 'menacing' category, being threatening or causing fear of real harm. It seems that law enforcement will not react to communications that are 'offensive, obscene or indecent' if they are not also menacing in character. 

When we take a step back and weigh the fundamental importance of freedom of expression and thought against perceived benefits that are gained from limiting social media communications, a decision to focus on prosecuting only comments that are threatening or that may lead to violence must be the right approach.

Ultimately though, courts and prosecutors cannot turn a blind eye to the specific words of legislation and therefore it is the government that must take a stand. To give real certainty to our communication laws, the government would be best placed to remove the words 'grossly offensive, obscene and indecent' from the Communications Act, so that attention and public resources can be spent on identifying communications that threaten or incite violent behaviour. 

Luke Scanlon is a technology and social medial law expert at Pinsent Masons, the law firm behind Out-Law.com.

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