The Director of Public Prosecutions, Kier Starmer, has now published its final guidelines stating how offensive a comment must be to justify police and prosecution time.  There are already concerns that the guidance will not go far enough to prevent the growing phenomenon of online ‘trolls’.

Starmer has said that prosecutors must respect and recognise freedom of expression and that messages posted on social media sites, such as Twitter, Facebook and blogging platforms, must be more than ‘shocking or disturbing, even if distasteful or painful to those subjected to it’.

Under the new guidelines, prosecutions might not follow if the individual “has expressed genuine remorse” or taken “swift and effective action” to remove the post or block access to it.  A prosecution could also be avoided if the communication “was not intended for a wide audience, nor was the obvious consequence of sending the communication”.  This suggests that ‘closed’ messages in a converstaion between a small number of social media users might not merit the same action as a post intended for the world at large.

Communications that amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders will be distinct from those communications which may be considered grossly offensive, to which the high threshold must apply.  The new threshold is likely to upset some religious and minority groups who have previously suffered online attacks.

The guidelines have come about as a result of what has become known as the ‘Twitter Joke Trial’ in which an aggrieved holidaymaker ‘threatened’ to blow up an airport if his flight was cancelled.  The subsequent prosecution will have cost many thousands of pounds and was overturned on appeal.

Starmer said: “Millions of communications are sent via social media every day, and prosecutors must be equipped to deal appropriately and consistently with cases arising from the growing use of these new ways of communicating.

“When I published the interim guidelines on prosecuting cases involving social media, I aimed to strike the right balance between freedom of expression and the need to uphold the criminal law.

“Encouragingly, the public consultation showed there is wide support for the overall approach set out in the guidelines, which state there should be a high threshold for prosecution in cases involving communications which may be considered grossly offensive, indecent, obscene or false.”

The guidelines come just a week after a student was prosecuted for posting a ‘grossly offensive’  comment on Twitter in the wake of the Woolwich attack on Drummer Lee Rigby.  Although she was not given a jail term, the message to social media users is clear: think before you post.