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Internet trolls beware – these rules will separate the haters from the hapless Internet trolls beware – these rules will separate the haters from the hapless
(35 minutes later)
The usual anxiety about freedom of speech and social media runs like this: someone naive to the permenance and potential cruelty of a tweet or Facebook update posts an offensive message intended for a narrow audience of their friends or acquaintances. That message, maybe racist or misogynist or otherwise abusive, is shared more widely than its author imagined, and takes on a weight that was never intended. An overzealous police officer sees it and decides that they are obliged to do something, and the ill-advised action of a moment becomes inescapable. Even if no one has really been hurt, a life is left in ruins, and all of us become a little less free. The usual anxiety about freedom of speech and social media runs like this: someone naive to the permanence and potential cruelty of a tweet or Facebook update posts an offensive message intended for a narrow audience of their friends or acquaintances. That message, maybe racist or misogynist or otherwise abusive, is shared more widely than its author imagined, and takes on a weight that was never intended. An overzealous police officer sees it and decides that they are obliged to do something, and the ill-advised action of a moment becomes inescapable. Even if no one has really been hurt, a life is left in ruins, and all of us become a little less free.
There have been enough salutary examples of this sort of thing (everyone remembers the so-called Twitter joke trial, where a man was dragged through court for years for making a joke about blowing up an airport if his flight was delayed) to mean that these fears are not merely hypothetical.There have been enough salutary examples of this sort of thing (everyone remembers the so-called Twitter joke trial, where a man was dragged through court for years for making a joke about blowing up an airport if his flight was delayed) to mean that these fears are not merely hypothetical.
And at face value, the Crown Prosecution Service’s (CPS) publication of new guidelines for cases involving social media might seem to exacerbate them. The new rules lay out the circumstances under which the CPS considers it appropriate to prosecute people for sending messages that “may be considered grossly offensive, indecent, obscene, or false”, conditions that sound awfully subjective. We have probably all said something, online or off, that might seem to fit one of those four categories; we don’t usually believe that these misjudgments make us criminals. And at face value, the Crown Prosecution Service’s publication of new guidelines for cases involving social media might seem to exacerbate them. The new rules lay out the circumstances under which the CPS considers it appropriate to prosecute people for sending messages that “may be considered grossly offensive, indecent, obscene or false”, conditions that sound awfully subjective. We have probably all said something, online or off, that might seem to fit one of those four categories; we don’t usually believe that these misjudgments make us criminals.
Look more closely at the guidelines, though, and a subtler picture emerges; one of a genuine attempt to delineate between the seriously abusive and the merely crass, and which you might hope will mark the beginning of a more mature legal engagement with an aspect of modern life which is still, after all, pretty new. Yes, the rules leave open the possibility of being prosecuted for a tweet. But baked into the guidelines are a series of thresholds which make it hard to imagine a hapless teenager being sent to prison for making a bad joke. Look more closely at the guidelines, though, and a subtler picture emerges; one of a genuine attempt to delineate between the seriously abusive and the merely crass, and which you might hope will mark the beginning of a more mature legal engagement with an aspect of modern life that is still, after all, pretty new. Yes, the rules leave open the possibility of being prosecuted for a tweet. But baked into the guidelines are a series of thresholds that make it hard to imagine a hapless teenager being sent to prison for making a bad joke.
First, if the remarks don’t constitute a threat of violence, targeted abuse, or the breach of an existing court order, the bar for prosecution is significantly higher. Prosecutors are asked to consider the unique and unstable context of online communication. They are reminded that the remarks must be more than ordinarily offensive; that satire is excluded wholesale; that unpopular opinions are not in themselves legally consequential “even if distasteful to some or painful to those subjected to it”. Even then, there is a strong public interest test for prosecution. If the suspect is under 18, has expressed remorse, or the message has been deleted, or if the message would not obviously have been visible to a wide audience, the guidelines say, it is unlikely that it will be a good idea to go ahead. First, if the remarks don’t constitute a threat of violence, targeted abuse, or the breach of an existing court order, the bar for prosecution is significantly higher. Prosecutors are asked to consider the unique and unstable context of online communication. They are reminded that the remarks must be more than ordinarily offensive; that satire is excluded wholesale; that unpopular opinions are not in themselves legally consequential “even if distasteful to some or painful to those subjected to it”. Even then, there is a strong public interest test for prosecution. If the suspect is under 18, has expressed remorse, or the message has been deleted, or if the message would not obviously have been visible to a wide audience, the guidelines say, it is unlikely that it will be a good idea to go ahead with prosecution.
So what, you might say. All of these rules are still open to interpretation; it is still possible to imagine an authoritarian and humourless prosecutor going to far. But the truth is that cases like the Twitter joke trial are well-known precisely because they are so rare; the CPS are now keenly aware of the public relations disaster that will follow in the case of such heavy-handed action. So what, you might say. All of these rules are still open to interpretation; it is still possible to imagine an authoritarian and humourless prosecutor going too far. But the truth is that cases like the Twitter joke trial are well-known precisely because they are so rare; the CPS are now keenly aware of the public relations disaster that will follow in the case of such heavy-handed action.
Meanwhile, for many people – particularly women and members of minorities – a life online continues to be subjected to all kinds of brutal and anonymised abuse. If, in this context, a mature set of guidelines seems too much to you, ask yourself this: is your concern really about the freedom of speech as it would be applied in the real world? If someone persistently marched up to strangers in the pub and screamed the kinds of abusive or discriminatory things at them that you are arguing should be protected online, do you really think they’d get away with it? Or is there a bit of you that likes the idea of the internet as an unregulated wild west, where anything goes, where the normal accumulation of rules that make up civilised society no longer applies? And if it’s the latter, why should the rest of us have to go along with it?Meanwhile, for many people – particularly women and members of minorities – a life online continues to be subjected to all kinds of brutal and anonymised abuse. If, in this context, a mature set of guidelines seems too much to you, ask yourself this: is your concern really about the freedom of speech as it would be applied in the real world? If someone persistently marched up to strangers in the pub and screamed the kinds of abusive or discriminatory things at them that you are arguing should be protected online, do you really think they’d get away with it? Or is there a bit of you that likes the idea of the internet as an unregulated wild west, where anything goes, where the normal accumulation of rules that make up civilised society no longer applies? And if it’s the latter, why should the rest of us have to go along with it?