DPP
20/09/2012
Keir
Starmer QC, the Director of Public Prosecutions, has said: "On 30 July
2012 Daniel Thomas, a semi-professional footballer, posted a homophobic
message on the social networking site, Twitter. This related to the
Olympic divers Tom Daley and Peter Waterfield. This became available to
his "followers". Someone else distributed it more widely and it made its
way into some media outlets. Mr Thomas was arrested and interviewed.
The matter was then referred to CPS Wales to consider whether Mr Thomas
should be charged with a criminal offence.
"The
Communications Act 2003 makes it an offence to send a communication
using a public electronic communications network if that communication
is "grossly offensive". It is now established that posting
comments via Twitter constitutes sending a message by means of a public
electronic communications network. It is also clear that the offence is
committed once the message is sent, irrespective of whether it is
received by any intended recipient or anyone else. The question in this
case is therefore whether the message posted by Mr Thomas is so grossly
offensive as to be criminal and, if so, whether a prosecution is
required in the public interest.
"There
is no doubt that the message posted by Mr Thomas was offensive and
would be regarded as such by reasonable members of society. But the
question for the CPS is not whether it was offensive, but whether it was
so grossly offensive that criminal charges should be brought. The
distinction is an important one and not easily made. Context and
circumstances are highly relevant and as the European Court of Human
Rights observed in the case of Handyside v UK (1976), the right
to freedom of expression includes the right to say things or express
opinions "...that offend, shock or disturb the state or any sector of
the population".
"The context and circumstances in this case include the following facts and matters:
(a) However misguided, Mr Thomas intended the message to be humorous.
(b) However naive, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family.
(c) Mr Thomas took reasonably swift action to remove the message.
(d) Mr Thomas has expressed remorse and was, for a period, suspended by his football club.
(e)
Neither Mr Daley nor Mr Waterfield were the intended recipients of the
message and neither knew of its existence until it was brought to their
attention following reports in the media.
"This
was, in essence, a one-off offensive Twitter message, intended for
family and friends, which made its way into the public domain. It was
not intended to reach Mr Daley or Mr Waterfield, it was not part of a
campaign, it was not intended to incite others and Mr Thomas removed it
reasonably swiftly and has expressed remorse. Against that background,
the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that
on a full analysis of the context and circumstances in which this single
message was sent, it was not so grossly offensive that criminal charges
need to be brought.
"Before
reaching a final decision in this case, Mr Daley and Mr Waterfield were
consulted by the CPS and both indicated that they did not think this
case needed a prosecution.
"This
case is one of a growing number involving the use of social media that
the CPS has had to consider. There are likely to be many more. The
recent increase in the use of social media has been profound. It is
estimated that on Twitter alone there are 340 million messages sent
daily. And the context in which this interactive social media dialogue
takes place is quite different to the context in which other
communications take place. Access to social media is ubiquitous and
instantaneous. Banter, jokes and offensive comment are commonplace and
often spontaneous. Communications intended for a few may reach millions.
"Against
that background, the CPS has the task of balancing the fundamental
right of free speech and the need to prosecute serious wrongdoing on a
case by case basis. That often involves very difficult judgment calls
and, in the largely uncharted territory of social media, the CPS is
proceeding on a case by case basis. In some cases it is clear that a
criminal prosecution is the appropriate response to conduct which is
complained about, for example where there is a sustained campaign of
harassment of an individual, where court orders are flouted or where
grossly offensive or threatening remarks are made and maintained. But in
many other cases a criminal prosecution will not be the appropriate
response. If the fundamental right to free speech is to be respected,
the threshold for criminal prosecution has to be a high one and a
prosecution has to be required in the public interest.
"To
ensure that CPS decision-making in these difficult cases is clear and
consistent, I intend to issue guidelines on social media cases for
prosecutors. These will assist them in deciding whether criminal charges
should be brought in the cases that arise for their consideration. In
the first instance, the CPS will draft interim guidelines. There will
then be a wide public consultation before final guidelines are
published. As part of that process, I intend to hold a series of
roundtable meetings with campaigners, media lawyers, academics, social
media experts and law enforcement bodies to ensure that the guidelines
are as fully informed as possible.
"But
this is not just a matter for prosecutors. Social media is a new and
emerging phenomenon raising difficult issues of principle, which have to
be confronted not only by prosecutors but also by others including the
police, the courts and service providers. The fact that offensive
remarks may not warrant a full criminal prosecution does not necessarily
mean that no action should be taken. In my view, the time has come for
an informed debate about the boundaries of free speech in an age of
social media."
Ends
