The public interest test for Internet trolling prosecutions in England and Wales

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.

When assessing whether a prosecution is required in the public interest for cases that fall within this category (that is category 12(4) above), prosecutors must follow the approach set out in these guidelines as well as the wider principles set out in the Code for Crown Prosecutors.

In particular when prosecutors are considering the public interest questions set out in paragraph 4.12 of the Code for Crown Prosecutors, they should have particular regard to paragraph 4.12(c) and the question asked about the circumstances of and harm caused to the victim where the communication is targeted at a particular person.

Since 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, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate.

A prosecution is unlikely to be both necessary and proportionate where:

  • The suspect has expressed genuine remorse;
  • Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
  • The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or
  • The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.

This is not an exhaustive list, however, and each case must be considered on its own facts and its own individual merits. In particular, where a specific victim is targeted and there is clear evidence of an intention to cause distress or anxiety, prosecutors should carefully weigh the effect on the victim, particularly where there is a hate crime element to the communication(s). A prosecution for an offence under section 1 of the Malicious Communications Act 1988 may be in the public interest in such circumstances, particularly if the offence is repeated; alternatively, a prosecution may be merited for an offence under section 127 (2) of the Communications Act 2003 in respect of the persistent use of a public electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another, assuming the high threshold for prosecution has been passed.

Children and young people

The age and maturity of suspects should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and a prosecution is rarely likely to be in the public interest.

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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