Offensive material on social media proving legal minefield

ALTHOUGH the Leveson inquiry into press standards has dominated headlines, another complex, media issue awaits its judgement day.

The Director of Public Prosecutions, Keir Starmer, is due to publish guidelines later this year about how the courts should deal with people who send offensive or threatening material via social media.

Nine years after Facebook launched and, as Twitter achieves 500m users, hardly a day passes without coverage of defamatory, offensive or criminal use of social networking sites, according to Andrew Davidson. a litigation lawyer at Leeds-based Lupton Fawcett, Lee & Priestley.

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Mr Davidson added: “From naming rape victims in court proceedings, ‘threatening’ to blow up airports, defaming peers or encouraging public riots, the question is how will the justice system of England and Wales deal with such cases.”

According to Mr Davidson, the courts have already demonstrated their readiness to take a firm line, when sentencing offences involving the posting of grossly offensive messages on social networking sites. For example, the courts handed out a 12-week sentence to a man who posted offensive Facebook comments about missing children April Jones and Madeleine McCann.

Mr Davidson added: “Keir Starmer has recognised the need for a consistent approach in deciding whether to prosecute the senders of offensive or threatening material under the Malicious Communications Act 1988 and the Communications Act 2003.”

Mr Starmer published interim guidelines in December last year, and started a public consultation, which ended last week.

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Mr Davidson added: “The interim guidelines are explicit as to the DPP’s desire to strike a balance between the right to free speech and the ability to protect people from credible threats of violence, criminal harassment and messages which are grossly offensive. He makes it clear that people who re-tweet or re-send messages which are criminal in content will also commit an offence. However, given the volume of social networking messages, the bar will, in part by necessity, be set high and content which is offensive or in poor taste will not in itself automatically trigger prosecution.

“However much the DPP strives for balance, the one certainty is that he will not please everyone. He should be prepared, on publication of his final guidelines, for the virtual storm in the Twittersphere of offensive and possibly even grossly offensive comments about its contents that will inevitably follow.”

Jeff Swales, who works in the litigation and dispute resolution team, at Andrew Jackson in Hull, added: “Whatever the conclusions reached from the DPP’s consultation it appears unlikely the matter will be easily resolved. There are millions of users who do not understand that what they say on the internet in general and social media, in particular, may result in civil action or prosecution.

“On the other hand, the judicial system needs to recognise that not every comment or opinion expressed in cyberspace can be subject to legal sanction. The difficulty lies in striking the balance between those cases which are deserving of prosecution and those which are not.”