As you may have noticed if you’re a regular reader of these here words, the police use of social media is a subject that is of great interest to me and so one that I periodically return to whenever a relevant story pops up in the news.
Reflecting my own experience using social media as a member of the 5-0, I’d suggested that the police can’t be expected to police people’s usage of social media.
Rather, social media sites themselves have a responsibility for offering tools to block and flag inappropriate content so that misuse is addressed before it gets out of hand and that care needs to be taken ‘offensive’ content be evaluated in its proper context.
This wasn’t to argue that offences can’t be committed using social media, nor that there aren’t occasions when the police might need to intervene, but simply to say that in many cases it’s neither appropriate, practical or necessary to do so.
Today the Director of Public Prosecutions, Keir Starmer QC, has published interim advice for prosecutors on how they should make decisions on whether suspects ought to be charged in relation to an allegation that they have misused social media. This advice can be summed up as follows:
- Communications that may constitute credible threats of violence, harassment or a breach of a court order ought be ‘prosecuted robustly’
- Communications that don’t meet the above criteria, for example offensive posts, will be subject to a tough ‘Full Code‘ test, this is whether there is a substantial offence and it is in the public interest to prosecute
- For the first part of the test, the threshold for ‘grossly’ offensive content will be that it is more than simply shocking, satirical or unpopular
- For the second part of the test relating to the public interest, it’d unlikely to be right to prosecute if the suspect had swiftly moved to remove the content in question, if they hadn’t intended the content to reach a wider audience or if the content could be seen as ‘tolerable or acceptable in an open and diverse society’
I think this is some very sensible advice which helps address the concerns I’d expressed previously that if social media isn’t properly understood and misuse tackled in a manner appropriate to the medium, the criminal justice system would quickly find itself inundated with cases that shouldn’t really be finding their way to court in the first place.
Taking the above tweet from @SolihullPolice as an example, it was quickly forwarded on by 22,000 other users. That’s 22,000 people who went on to republish the content through their own Twitter accounts, not to mention on other sites and networks.
Imagine now that rather than being a witty update, the same tweet was offensive in tone. Take this tweet from the BNP with the headline ‘Savage Muslim jailed for life‘ as an example.
I like most people find this content absolutely abhorrent, some may approach the police saying as much.
A tough decision then would have to be made as to whether the legal system represents the right tool for addressing the offence caused.
I’m confident that the tweet is indeed offensive but is it ‘grossly’ offensive, particularly considering the publisher and its intended audience? Unfortunately not.
Again, in terms of it being in the public interest to prosecute people for publishing such unpopular sentiments, it’s unlikely that an argument could be made that it is.
Furthermore, were it to be the case that 22,000 people were to forward on the same tweet it obviously wouldn’t be any sort of realistic prospect to be looking at 22,000 separate crime reports with 22,000 offenders to be arrested, interviewed and charged.
An extreme example admittedly but it goes to show how unless there are some tough tests for which cases are appropriate for trial, investigations could quickly spiral out of all sensible proportion.
As impractical as such an occurrence may seem, it was only last month when during the Lord McAlpine scandal, there were suggestions that the police look atinvestigating over one thousand Twitter users who had wrongly named him as connected to a sex abuse allegation, alongside a further nine thousand who had retweeted the same messages.
I think it’s fair to say that social media and the way it is used is always going to evolve faster than the law can keep up with it. The amount of people using it though and the related potential for issues to arise likely to involve criminal law mean that social media will always have to be kept under review so that the application of the law is appropriate to the medium.
With half a billion tweets being sent daily, the DPP’s advice is a timely reminder that if we don’t try and tailor the law to circumstance then the consequence can be that it is quickly rendered unsuitable for protecting the public it is designed to serve.
For a little more on the application of the law in relation to the Tom Daley case, have a look at this interesting Guardian article from July by Joshua Rozenberg.
Courtesy of PC Richard Stanley