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Consultation on the Interim Guidelines on Prosecuting Cases involving Communications sent via Social Media - Summary of Responses

Contents

Introduction

This is a summary of responses to the three month public consultation undertaken by the Crown Prosecution Service (CPS) on the interim guidelines for prosecutors on prosecuting cases involving communications sent via social media.

This document sets out:

  • the background to the consultation;
  • an overall summary of the responses;
  • a summary of the responses to the specific questions; and
  • our conclusions.

Copies of this Summary of Responses are also available in PDF format.

Background

On 19 December 2012, the Director of Public Prosecutions (DPP) launched a consultation on the interim guidelines on prosecuting cases involving communications sent via social media.

The guidelines have been produced to assist prosecutors dealing with cases involving communications sent via social media. In order to get a wide range of views on this important issue, we consulted publicly on the guidelines, which we initially issued on an interim basis.

The consultation was preceded by six roundtable meetings to inform the drafting of the guidelines and they were attended by over 50 different organisations/individuals representing major stakeholders and experts. The extensive discussions informed the interim guidelines and ensured we had robust guidance that was widely welcomed and accepted on consultation.

As part of the consultation, respondents were asked to answer five specific questions and to give any additional comments or views at the end of their responses. The consultation period closed on 13 March 2013. A small number of responses were received after this date and were given full consideration. All replies have been included in this summary of responses. A list of respondents can be found at Annex A of this document. We are very grateful to everyone who took the time to respond to the consultation.

Following the public consultation, and in light of the responses received and our further consideration, we have revised the guidelines. The interim guidelines have now been replaced by the final guidelines which come into effect on 20 June 2013. The changes include providing greater detail around communications targeting specific individuals, particularly where such communications constitute harassment or stalking.

Some comments were based on a misunderstanding about the scope of the consultation and the work of the CPS. Although the guidelines are accessible to the public on the CPS website, they are primarily to provide guidance to prosecutors making prosecution decisions. Whether Parliament should legislate for offences specific to social media was raised by some respondents, but that is not a question for the CPS and we have therefore not commented on it.

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Overall Summary of Responses

We received a total of 59 responses to the public consultation. They were as follows:

Table 1: Table of respondent type

Summary of Respondents

Category of Respondent Number Percentage of Total
Public Sector 11 18.5
Organisations (including victims' groups and those representing the media) 26 44
Academics 8 14
Legal profession 3 5
Individuals 11 18.5
Total 59 100

Not every respondent gave specific answers to each individual question in the consultation. Each individual response has been reviewed carefully by CPS Strategy and Policy Directorate. Not all respondents followed the specific questions posed in the consultation, but their views are reflected in the detailed analysis of the responses that follow.

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Responses to specific questions

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

Only two of the respondents specifically disagreed with paragraph 12 of the interim guidelines in which we set out an approach based on four categories of cases to help prosecutors with the initial assessment of offences. 40 of the responses indicated they agreed with the approach.

A number of suggestions were made about the categories within the approach set out. As a result of this, we have identified the second category as needing strengthening, which was the category concerned with communications that specifically target an individual. We have added text to help clarify the purpose of this particular category and provided further information to set out more clearly the links with stalking and harassment.

Some responses suggested that the presence of hate crime elements or gender discrimination should specifically be considered as an aggravating factor. We have considered these points, which have been well made. However, the social media guidelines need to be read in conjunction with the Code for Crown Prosecutors (the Code), the 7th edition of which was published in January 2013. The Code includes a number of questions at paragraph 4.12 to assist prosecutors in identifying relevant public interest factors. Included at paragraph 4.12 (c) is the following question: "What are the circumstances of and harm caused to the victim?" The explanatory text under this public interest question includes the statement:

Prosecutors must also have regard to whether the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief. Sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics. The presence of any such motivation or hostility will mean that it is more likely than prosecution is required.

Hate crime and gender discrimination are therefore both matters to which prosecutors must have proper regard at present. We have amended the guidelines to include text that draws prosecutors' attention to paragraph 4.12 (c) of the Code to address concerns regarding hate crime and gender discrimination and to highlight how the impact of communications on victims is being taken into account. We have also clarified at paragraph 45 that a hate crime element will be particularly important when prosecutors consider the impact of the communication on the victim with other public interest factors.

QUESTION 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?

33 respondents indicated that they supported the threshold set, whilst 14 stated that they did not. The remainder did not reply to this question. One respondent suggested that the threshold should be higher still. A small minority of respondents expressed concern that there should be any consideration of the likely volume of prosecutions.

We have not altered the high threshold. The existing text makes it clear that the issue is not the volume of prosecutions in itself, but rather the effect of a high volume of prosecutions on free speech and the potential "chilling effect", which is the consideration behind the high threshold. The high threshold also only applies to cases that fall within the fourth category of general messages. It is important that prosecutors have regard to the high threshold set out and the effect of a large volume of prosecutions on free speech.

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

There was confusion amongst some of the respondents as to whether we were talking about the public interest in cases across all four categories. We have therefore included text to make it clearer that the public interest referred to is in respect of the fourth category of general messages.

In addition, we have added text to say the factors are not exhaustive and that prosecutors should consider the facts and merits of the individual case.

For ease of reference, the factors set out in the interim guidelines are repeated:

a. The suspect has swiftly taken action to remove the communication or expressed genuine remorse

20 of the 59 respondents agreed that this should be a relevant factor for consideration, whilst 19 disagreed. The other 10 did not respond to this question. There was concern that, as drafted, it allowed the offender to do one but not both and still have the benefit of a factor tending against prosecution. In order to address this, we have revised factor (a) by separating the two aspects of this particular factor. We have amended (a) so that it now requires the expression of genuine remorse only by the suspect. However, we have still kept the second element (swift action by the suspect to remove the communication) but linked this into an amended factor (b). Further explanation is provided below.

b. Swift and effective action has been taken by others for example, service providers, to remove the communication in question or otherwise block access to it

18 of the 29 respondents who answered this question disagreed with its inclusion. 11 agreed and the other 30 did not respond to this question. It was suggested that this factor was not within the suspect's control and therefore should not have any bearing on a decision whether or not to prosecute. This factor has therefore been amended to extend it to take account of the suspect's action (which was previously an element of (a)) so that this factor allows prosecutors to take into account swift and effective action by the suspect, as well as others such as service providers.

Some respondents were concerned that swift action to remove the communication did not automatically mean a reduction in the damage caused by the communication. However, as the factor already requires that the action taken be effective, this factor has not been amended any further.

c. The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question

Of those who responded to this question, 16 were in favour of its inclusion whilst 11 were not. 33 respondents did not reply to this question. The objections varied from concern that reckless behaviour should not escape prosecution, to those who considered that the wording would make criminalisation of individuals too easy.

We have not amended the factor as we remain of the view that the intended audience is a valid public interest consideration as it points to the potential harm intended by the sender of the communication.

d. The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression

4 respondents supported this factor as drafted, whereas 11 respondents did not. The other 34 respondents did not reply to this question. Some considered that categories of message, such as those relating to sexism or gender inequality, are always extremely harmful, whilst others considered that offensive communications to children should always be prosecuted.

Two respondents pointed out that, in light of the first stage of the assessment requiring prosecutors to find that the message or messages in question are grossly offensive, indecent, obscene or false, the inclusion of (d) requires them in effect to repeat the initial assessment and is therefore superfluous.

However, paragraph 36 of the interim guidelines concerns the evidential requirements for bringing cases in the fourth category by considering the context, whereas public interest factor (d) requires the prosecutor to consider the public interest in respect of freedom of speech and whether the communication goes beyond what is acceptable in our society. We have included additional text to specifically refer to evidence in order to emphasise that the high threshold is in place at the evidential stage.

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QUESTION 4: Are there any other public interest factors that you think should also be included?

There were a number of other suggestions but they largely repeat factors already in the Code for Crown Prosecutors. These include consideration of public resources and expenditure and the harm caused to the victim.

One respondent suggested that communications to a victim who is a celebrity or working as a public servant (such as a policeman) should be less likely to face prosecution. This suggestion has not been adopted as to do so would, in our view, create an inappropriate hierarchy of victims.

12 respondents thought that specific consideration should be given to the age, maturity and vulnerability of the victim as well as the impact and potential harm caused to that victim. This is again why we have included reference directing prosecutors to have specific regard to paragraph 4.12(c) of the Code and the question asked about the circumstances of and harm caused to the victim.

In addition, one respondent suggested that the concept of the term 'victim' may need to be widened to 'potential victims', as others may be affected by communications on social networking sites, not just the victim to whom the comments were directed. Prosecutors are already able to take this into account when assessing the impact on the community as they are required to do so by virtue of paragraph 4.12(e) of the Code.

QUESTION 5: Do you have any further comments on the interim policy on prosecuting cases involving social media?

Several responses suggested that a change to legislation is required, as well as more coherent sentencing policy/guidelines. Both of these actions are outside the scope of the work of the CPS and therefore we are unable to comment further.

Other issues raised included requests that we further define or clarify what would be considered as 'grossly offensive, indecent, obscene or false', as well as requests to further define 'credibility'.

Defining 'grossly offensive, indecent, obscene or false'

We do not consider that it would be appropriate for us to define further these terms beyond what the courts have said, and that if further clarification is required it should be a matter for the court. We have not therefore taken action in relation to this suggestion.

Defining 'credible threat'

Respondents expressed concern that the interim guidelines do not define the term 'credible', nor do they provide any information as to what prosecutors should consider when assessing the credibility of the threat.

Several respondents suggested that the term 'credible' requires further clarification. However, we have not included additional text in this regard as prosecutors will give the word its ordinary dictionary meaning and will consider each case individually depending on the facts and circumstances of the case as a whole.

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Conclusion

The CPS is grateful to all those who responded to the consultation and the time that they have invested in doing so. We have carefully considered all the responses received, and have taken them into account when considering whether to revise the interim guidelines. The changes are now reflected in the final version of the guidelines.

The referral to the Principal Legal Advisor of cases involving communications sent via social media has been useful in providing central oversight of these cases. Upon publication of the final guidelines, this central referral requirement will be modified so that only those cases involving grossly offensive, indecent, obscene or false communications (category 4), where a prosecution is proposed, will need to be referred to the Principal Legal Advisor for authorisation.

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Annex A

Response to consultation

Academics

Dr Claire Hardaker, University of Central Lancashire
Jonathan Bishop, University of Swansea
Riitta Ollila, Jyväskylä University, Finland
Jacob Rowbottom, University of Oxford
Professor Carsten Maple and Dr Richard Lang, University of Bedfordshire (National Centre for Cyberstalking Research)
Northumbria's Student Law Think Tank, School of Law, University of Northumbria
Professor Alisdair Gillespie, University of Lancaster
Centre for the Study of Law, Society and Popular Culture, University of Westminster

Media

Ofcom
The Newspaper Society
Internet Services Providers' Association (ISPA UK)

Legal profession

The Law Society
David Cook, For and on behalf of Pannone LLP
Criminal Bar Association

Organisations

Naturist Action Group
Community Security Trust
Index on Censorship
Armed Forces and Rugby Football Union
Victim Support
ChildLine/NSPCC
The Football Association (FA)
Faith Matters/Tell MAMA
The Gender Identity Research and Education Society (GIRES)
Suzy Lamplugh Trust (National Stalking Helpline)
ARTICLE 19
English PEN
Big Brother Watch
Chartered Management Institute (CMI)
BeatBullying (The BB Group)
Open Rights Group
Eaves
JUSTICE
Stonewall
National Association of Headteachers
End Violence Against Women Coalition (EVAW)
AVA (Against Violence and Abuse)
Feedback from Newcastle United

Public Sector

Greater Manchester Police
Derbyshire Police
Police Federation of England and Wales
CPS North East Homophobic/Transphobic and CPS North East Racist and Religious Hate Crime Scrutiny Panels; and CPS North East Joint Community Involvement Panels
HM Crown Prosecution Service Inspectorate
ACPO (British Transport Police)
National Black Crown Prosecutors Association
Paul Giannasi [Hate Crime Programme (ACPO Hate Crime Portfolio)]
Suffolk & Essex Local Scrutiny & Involvement Panel and Norfolk and Cambridgeshire Local Scrutiny & Involvement Panel
Emily Thornberry MP, Shadow Attorney General

Individuals

Matthew Quantrill
Tony Lloyd
Paul Webbewood
Anthony Millar
James Haslam
Robert Candlish
W S K Bryan
Rianna Humble
Naomi Smith
Laura Traynor
Peter Craske

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