The High Threshold at the Evidential Stage of Internet Trolling Prosecutions

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.

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 such comments creates the potential that a very large number of cases could be prosecuted before the courts. Taking together, for example, Facebook, Twitter, LinkedIn and YouTube, there are likely to be hundreds of millions of communications every month.

In these circumstances there is the potential for a chilling effect on free speech and prosecutors should exercise considerable caution before bringing charges under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. There is a high threshold that must be met before the evidential stage in the Code for Crown Prosecutors will be met. Furthermore, even if the high evidential threshold is met, in many cases a prosecution is unlikely to be required in the public interest (see paragraphs 42 onwards).

Since both section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 will often engage Article 10 of the European Convention on Human Rights, prosecutors are reminded that these provisions must be interpreted consistently with the free speech principles in Article 10, which provide that:

“Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …”

As the European Court of Human Rights has made clear, Article 10 protects not only speech which is well-received and popular, but also speech which is offensive, shocking or disturbing (Sunday Times v UK (No 2) [1992] 14 EHRR 123):

“Freedom of expression constitutes one of the essential foundations of a democratic society … it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb …”

Freedom of expression and the right to receive and impart information are not absolute rights. They may be restricted but only where a restriction can be shown to be both:

  1. Necessary; and
  2. Proportionate.

These exceptions, however, must be narrowly interpreted and the necessity for any restrictions convincingly established (see the judgment of the European Court in the Sunday Times case at paragraph 50).

The common law takes a similar approach. In Chambers v DPP [2012] EWHC 2157 (Admin), the Lord Chief Justice made it clear that:

“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003].”

Prosecutors are reminded that what is prohibited under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is the sending of a communication that is grossly offensive. A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law. As Lord Bingham made clear in DPP v Collins [2006] UKHL 40:

“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”

More information

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.

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