The Director of Public Prosecutions for England and Wales has issued the following guidelines for those considering prosecuting someone for Internet trolling. If prosecutors do not follow these guidelines they could be subject to an investigation from the Independent Police Complaints Commission.
Communications sent via social media are capable of amounting to criminal offences and prosecutors should make an initial assessment of the content of the communication and the conduct in question so as to distinguish between:
- Communications which may constitute credible threats of violence to the person or damage to property.
- Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
- Communications which may amount to a breach of a court order. This can include offences under the Contempt of Court Act 1981, section 5 of the Sexual Offences (Amendment) Act 1992, breaches of a restraining order or breaches of bail. Cases where there has been an offence alleged to have been committed under the Contempt of Court Act 1981 or section 5 of the Sexual Offences (Amendment) Act 1992 should be referred to the Attorney General and via the Principal Legal Advisor’s team where necessary.
- Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.
As a general approach, cases falling within sections 1, 2 or 3 above (and below) should be prosecuted robustly where they satisfy the test set out in the Code for Crown Prosecutors. On the other hand, cases which fall within paragraph paragraph 4 above (and below) will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.
Having identified which of the categories set out in paragraph 12 the communication and the course of conduct in question falls into, prosecutors should follow the approach set out under the relevant heading below.
1. Credible threats
Communications which may constitute credible threats of violence to the person may fall to be considered under section 16 of the Offences Against the Person Act 1861 if the threat is a threat to kill within the meaning of that provision.
Other credible threats of violence to the person may fall to be considered under section 4 of the Protection from Harassment Act 1997 if they amount to a course of conduct within the meaning of that provision and there is sufficient evidence to establish the necessary state of knowledge.
Credible threats of violence to the person or damage to property may also fall to be considered under section 1 of the Malicious Communications Act 1988, which prohibits the sending of an electronic communication which conveys a threat, or section 127 of the Communications Act 2003 which prohibits the sending of messages of a menacing character by means of a public telecommunications network. However, before proceeding with such a prosecution, prosecutors should heed the words of the Lord Chief Justice in Chambers v DPP  EWH2 2157 (Admin) where he said:
“… a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a)], for the simple reason that the message lacks menace.”(Paragraph 30)
As a general rule, threats which are not credible should not be prosecuted, unless they form part of a campaign of harassment specifically targeting an individual within the meaning of the Protection from Harassment Act 1997 (see category (2) below).
Where there is evidence of hostility or prejudice, prosecutors should pay particular regard to sections 28-32 of the Crime and Disorder Act 1998 and section 145 of the Criminal Justice Act 2003 (increase in sentences for racial and religious aggravation) and section 146 of the Criminal Justice Act 2003 (increase in sentences for aggravation related to disability, sexual orientation or transgender identity).
2. Communications targeting specific individuals
If communication(s) sent via social media target a specific individual or individuals they will fall to be considered under this category if the communication(s) sent fall within the scope of the Protection from Harassment Act 1997 and constitute harassment or stalking.
Harassment can include repeated attempts to impose unwanted communications or contact upon an individual in a manner that could be expected to cause distress or fear in any reasonable person. It can include harassment by two or more defendants against an individual or harassment against more than one individual.
Stalking is not defined in statute but a list of behaviours which might amount to stalking are contained in section 2A (3) of the Protection from Harassment Act 1997. This list includes contacting, or attempting to contact, a person by any means.
When considering an offence under the Protection from Harassment Act 1997, the prosecution will need to prove that the defendant pursued a course of conduct which amounted to harassment or stalking. The Act states that a “course of conduct” must involve conduct on at least two occasions.The conduct in question must form a sequence of events and must not be two distant incidents (Lau v DPP (2000), R v Hills (2000)).
Prosecutors should consider that a course of conduct may often include a range of unwanted behaviour towards an individual and a communication sent via social media may be just one manifestation of this. Where an individual receives unwanted communications from another person via social media in addition to other unwanted behaviour, all the behaviour should be considered together in the round by the prosecutor when determining whether or not a course of conduct is made out.
If there is evidence that an offence of stalking or harassment has been committed and the communication targets an individual or individuals on the basis of their race or religion, prosecutors should consider whether the offence is a racially or religiously aggravated offence. In order to do so, there must first be sufficient evidence that the “basic” offence has been committed (as set out in sections 29-32 of the Crime and Disorder Act 1998), followed by the aggravating element defined in section 28 of the Crime and Disorder Act 1998. Where there is aggravation related to disability, sexual orientation or transgender identity, prosecutors should have regard to the increase in sentence provisions under section 146 of the Criminal Justice Act 2003.
3. Breach of court orders
Court orders can apply to those communicating via social media in the same way as they apply to others. Accordingly, any communication via social media that may breach a court order falls to be considered under the relevant legislation, including the Contempt of Court Act 1981 and section 5 of the Sexual Offences (Amendment) Act 1992, which makes it an offence to publish material which may lead to the identification of a victim of a sexual offence.
In such cases, prosecutors should follow the CPS Legal Guidance on Contempt of Court and Reporting Restrictions and observe the requirement for contempt cases to be referred to the Attorney General and via the Principal Legal Advisor’s team where necessary.
Prosecutors should also consider whether the communication in question has breached the requirements of another order such as a Restraining Order or if it would constitute a breach of bail.
4. Communications which are grossly offensive, indecent, obscene or false.
Communications which do not fit into any of the categories outlined above fall to be considered either under section 1 of the Malicious Communications Act 1988 or under section 127 of the Communications Act 2003. These provisions refer to communications which are grossly offensive, indecent, obscene, menacing or false (but as a general rule, menacing communications should be dealt with under category (1) above on credible threats).
Section 1 of the Malicious Communications Act 1988 deals with the sending to another of an electronic communicationwhich is indecent or grossly offensive, or which conveys a threat, or which is false, provided there is an intention to cause distress or anxiety to the recipient. The offence is one of sending, delivering or transmitting, so there is no legal requirement for the communication to reach the intended recipient. The terms of section 1 were considered in Connolly v DPP  1 ALL ER 1012 and “indecent or grossly offensive” were said to be ordinary English words. A person guilty of an offence under section 1 of the Malicious Communications Act 1988 is liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine or both.
Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a “public electronic communications network” a message or other matter that is “grossly offensive” or of an “indecent, obscene or menacing character”. The same section also provides that it is an offence to send or cause to be sent a false message “for the purpose of causing annoyance, inconvenience or needless anxiety to another”. The defendant must be shown to have intended or be aware that the message was grossly offensive, indecent or menacing, which can be inferred from the terms of the message or from the defendant’s knowledge of the likely recipient. The offence is committed by sending the message. There is no requirement that any person sees the message or be offended by it.
In Chambers v DPP  EWHC 2157 (Admin), the Divisional Court held that because a message sent by Twitter is accessible to all who have access to the internet, it is a message sent via a public electronic communications network. Since many communications sent via social media are similarly accessible to all those who have access to the internet, the same applies to any such communications. However, section 127 of the Communications Act 2003 does not apply to anything done in the course of providing a programme service within the meaning of the Broadcasting Act 1990.
These guidelines form part of the Crown Prosecution Service’s guidelines on prosecuting cases involving communications sent via social media, which were issued in June 2013. Prosecutors should be aware that if they do not follow these guidelines they could be investigated by the Independent Police Complains Commission and/or have any prosecution dismissed by a judge.