On Wednesday night, the DPP spoke at the LSE on the issue of social media. This follows a series of ‘roundtables’ at which he invited some prominent legal tweeters, (with some notable absences), to proffer their thoughts on how the law can best deal with the issue of prosecutions in cases involving social media.
Here is a list of questions/discussion topics which were presented to the attendees for consideration.
At the LSE, the DPP discussed social media prosecutions and stated that he understood the anxiety of the Twitter community in relation to free speech: “It is important and the criminal threshold must be high”.
Whilst there are many issues pertaining to offences committed through social media, it is the Communications Act 2003 s 127 which has of late been the really controversial talking point.
See here for the UK Human Rights Blog post on a conviction under the Act.
See here for Adam Wagner (of UK Human Rights Blog) being interviewed by Joshua Rozenberg for BBC R4’s Law in Action, on this topic.
However, the bit that got every talking was this. Someone posed the question ‘Is it an offence to re-tweet something grossly offensive?’ to which the DPP replied, ‘you retweet, you commit an offence under the Act.’
This caused concern among Twitter users. Many state clearly in their ‘bios’ that a RT is not an endorsement, i.e. retweeting another’s tweet is not an indication that the view is shared or the content is endorsed. NEWSFLASH the DPP cares not for your disclaimer, and section 127 cares not for your intent. It states:
Improper use of public electronic communications network
(1) A person is guilty of an offence if he:
(a) 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; or
(b) causes any such message or matter to be so sent.
There is no requirement that the message was sent with the intention of it being grossly offensive, nor that there is a defence if the message is sent with a view to the original sender being dealt with by the police – why would there be? The legislation has its roots in the Post Office (Amendment) Act 1935 and was voted on in its current form prior to Twitter and Facebook even existing.
So it appears that whether you are a newspaper tweeting links to the image of Mr Barry Thew’s t-shirt (see here for a summary of his case), a fan retweeting a grossly offensive joke tweeted by your favourite comedian, or simply a do-gooder retweeting a grossly offensive tweet to enable the authorities to take appropriate action prior to the user removing the tweet, you fall foul of the Act.
Where then, does that leave you? Well, quite simply, in the collective lap of the CPS. Flip a coin…because who knows whether the charging decision will be the sensible one (Paul Chambers, Matthew Woods spring to mind). I think the DPP should be commended on what he is trying to do with social media and the law, but relying on prosecutorial discretion is not the way forward.
Can we not simply have a law which criminalises that which ought to be criminal whilst leaving untouched that which ought to be untouched?