These CPS guidelines make the law around social media vastly more clear | Sarah Ditum

The CPS's differentiation between bad taste and abuse on media such as Facebook and Twitter is a welcome change

There's a real people-pleasing feel to the director of public prosecutions' new guidelines for the treatment of those who misuse social media. Something for everyone. If you've been a victim of online harassment, here's reassurance that the legal system takes it seriously. If you're worried that your line in bad taste jokes could see you turned into the subject of another Twitter joke trial, here's a comforting sense of proportion from the Crown Prosecution Service about what it is and isn't in the public interest to prosecute. And if you work in the police or the courts, you now know that you won't be obliged to spend every working minute tracking down YouTube commenters and prosecuting them for severe bellendery.

Because there's a lot of bellendery on the internet, and a legal system that tried to deal with all of it would quickly become a legal system that didn't get anything else done. As the guidelines say:

"Every day many millions of communications are sent via social media and the application of section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 to any that are grossly offensive, indecent, obscene or menacing or that are false if there is an intention to cause annoyance, inconvenience or needless anxiety to another, creates the potential that a very large number of cases could be prosecuted before the courts."

It's not just the potential workload that means the threshold should be high, though. The guidelines also have to balance the right not to be harassed with the right to free speech, which means the CPS is asked to weigh up whether there is "clear evidence of an intention to cause distress or anxiety", or if the tweet/Facebook status/LinkedIn message (yes, the guidelines make reference to poor old LinkedIn) was merely "[t]he expression of unpopular or unfashionable opinion … even if distasteful to some or painful to those subjected to it".

The CPS doesn't just have to consider the public interest in prosecuting individual cases, but also the more general public interest in being able to say potentially upsetting things without fear of prosecution. Those conflicting demands mean that the resulting guidance asks prosecutors to consider much more than the content of the offending message, beyond cases of obvious and direct threats: did the suspect show remorse, was the target intended to see the message, was any distress caused intentional? (Although, contrary to some headlines, just being boozed up isn't listed as a mitigating factor.)

Even with those necessary ambiguities, this still makes the law around social media vastly more clear. A few months ago, I found myself having a series of vaguely apologetic conversations with the police, trying to work out whether communications to which I'd been subject amounted to anything criminal or not. I knew enough about the law to know it probably didn't, as the messages weren't threatening in themselves and rightly my complaint didn't lead to a prosecution, though the close, constant attention over a number of months made me feel threatened and I wanted the police to be aware in case it escalated.

The response was generally sympathetic and pragmatic, though one officer did suggest I consider leaving Twitter to avoid these messages. That seemed a bit like telling a stalking victim to avoid a certain town in case she was followed there – but it's also true that being followed is part of the point of Twitter, and there's a slight hypocrisy in complaining when it's done too assiduously. It's not just the law that needs to catch up with social media, but manners too and manners can't be legislated for. The new DPP guidelines show that the legal system is finding ways to adapt itself to the media world we've lived in since the mid-2000s. It's not doing too badly, either: a decade after the printing press appeared, people were being set on fire for the things they published. The rest of us are still feeling our way through, offending and being offended as we go.


Sarah Ditum

The GuardianTramp

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