03 January 2013

The right to offend


Amber Melville-Brown
Partner | UK

There is a new sheriff in virtual town, and his name is the DPP. Amber Melville-Brown analyses Britain's interim guidance to prosecutors in the battle against increasing cyber crimes The Artist — last year's unexpected smash hit film from France — took us back to the simpler days of the late 1920s as the new-fangled phenomena of ‘talkies' nudged the aging silent movies, out of the lime light. Amid the comedy, the dance and the romance, the story tells the serious tale of those who are afraid of change, with the main character refusing to accept innovation and facing downfall and ruin as a result. While The Artist spoke of reluctance to change 100 years ago, it seems that with the birth of the Internet only a couple of decades ago, on the face of it at least, we have learnt a lesson. Today, we embrace modern technology with a wild abandon and it is inconceivable in modern Western society to carry on our everyday lives without an arsenal of technological tools. Every new device, application or development is met by a hungry populace, ready to start to exploit it. Social networking is a prime example — and the younger generation especially has thrown itself into the virtual world where they engage and communicate, sharing ideas, information and opinions via a plethora of social networking sites, the most well-known of which are Facebook and Twitter. Brave new world But what are the rules for the brave new world in which we now live? Children may have been brought up by parents not to be rude to their friends and taught by teachers not to bully their classmates. But, as yet, there is no place in the school curriculum, after double geography and just before PE for ‘the niceties of the defamation legislation', or ‘a beginner's guide to anti-harassment laws', or ‘malicious communications legislation made simple'. The Internet is often described as a Wild West, where anonymous keyboard bandits roam undetected, making false and defamatory allegations or offensive and harassing statements with impunity. But virtual activities and publications via the Internet are no less liable to sanction than those carried out by tabloid newspapers or the quality press. And it seems to be a lack of knowledge of the law — not a lack of legal restraints — that, according to recent reports, has led to a huge rise in social media ‘crimes'. The BBC says statistics released under the UK's Freedom of Information Act reveal that 653 people were charged with offences in 2012 in England, Scotland and Wales. Threats of violence While those of us using social networking systems may have missed out on what might become required learning in future, England's Director of Public Prosecutions (DPP), Kier Starmer, has come to the rescue, recently publishing interim guidelines setting out the approach prosecutors should take in cases involving social media communication. Several recent incidents illustrate why it is not always easy to know when someone has crossed the line into illegality. This year, Paul Chambers was convicted for having sent a joke tweet, fuelled presumably by frustration: ‘Crap! Robin Hood airport is closed. You've got a week and a bit to get your s**t together, otherwise I'm blowing the airport sky high!' He was convicted of an offence under the UK's Communications Act 2003 and fined £1,000.The conviction was subsequently overturned on appeal — to much public agreement and no doubt relief — but indicating quite clearly the need for better guidance. The DPP's guidelines make clear that three types of communications should be prosecuted ‘robustly' under the relevant legislation: communications that constitute credible threats of violence to a person or damage to property; those that specifically target an individual or individuals, constituting harassment or other similar offences; and those that amount to a breach of a court order. Other communications, for example, those that may be considered grossly offensive, indecent, obscene or false, should be subject to a 'high threshold' when prosecution is being considered — although of course, that does not prevent them forming the subject of a civil complaint, for example in defamation or harassment. Shocking or disturbing It is likely that the high threshold will allow many who send ‘offensive, shocking or disturbing' communications, or those that are ‘satirical, iconoclastic or rude', to avoid bumping their heads on the ceiling of prosecution, because the guidelines require the communications to do more than simply fitting those categories. In principle, the guidelines should allow people to vent angry or misguided musings, or banter and humour, without the fear of prosecution, thereby protecting free speech, while at the same time providing protection to the public over what amounts to 'credible threats'. Indeed, all categories are subject to a public interest requirement, so that no prosecution should be made unless it is both necessary and proportionate. Unfamiliar territory Ultimately, no guidelines can be an exact science and their success will come down to the way in which the authorities enforce them and the way in which lessons are learnt from those who operate in the virtual world. It is certainly not the case that the Internet is an ungovernable Wild West. But we are operating in relatively unfamiliar territory. No matter that the sepia tinged days of the silent movies may appear to us more romantic, those days will not come again. We have learnt to talk — and to talk to millions of others at the click of a mouse. In the process, we will offend and injure; but only when those injuries are serious, should the spur clad, criminal law toting sheriff and his band of trusty prosecutors step in.

Amber Melville-Brown Partner | London

Category: Blog