The concerns being raised online [
EDIT to add: BBC, DailyMail, Guardian and more...] are perhaps (more than slightly) unfounded and due to a healthy dose of 'projection', for want of a better word. Whilst most of the Guidelines do discuss 'harassment' etc. in a way that *might* cause concern (and they do, assuming arguments in good faith, when read in part rather than whole
[update: cf. edit above]),
they are relatively clear in their intent and context; the engagement of activities with the intent to cause or persist actual harm between individuals that might be a continuation of hostilities elsewhere - boyfriend/girlfriend 'harassing' online through social media
; their partner after a breakup; some Court action etc. In other words behaviors that might otherwise be considered a breach of an order or extension of existing or known 'harassment'.
It's not specifically limited to this but the context is important - the guidelines are not written for blanket application; there is a section in fact that specifically guides against this:
Category 4: Communications which are grossly offensive, indecent, obscene or false and sets a pretty clear (high) standard against which 'communications' must be tested - simply sending nasty tweets is not an offense;
The High Threshold at the Evidential Stage
There is a high threshold that must be met before the evidential stage in the Code for Crown Prosecutors (the Code) will be met. Furthermore, even if the high evidential threshold is met, in many cases a prosecution is unlikely to be required in the public interest. See further the sections below on The Public Interest and Article 10 ECHR (European Commission on Human Rights).
In Chambers v DPP [2012] EWHC 2157 (Admin), the Lord Chief Justice made it clear that:"Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003]."
Prosecutors are reminded that what is prohibited under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is the sending of a communication that is grossly offensive. A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law. As Lord Bingham made clear in DPP v Collins [2006] UKHL 40: - "There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates."
- "The Justices must apply the standards of an open and just multi-racial society".
- "The question is whether ... [the defendant] used language which is beyond the pale of what is tolerable in our society".
- "[Is there anything] in the content or tenor of [the] messages to soften or mitigate the effect of [the] language in any way?"
Furthermore...
Context and Approach
Context is important and prosecutors should have regard to the fact that the context in which interactive social media dialogue takes place is quite different to the context in which other communications take place. Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous. Communications intended for a few may reach millions. As Eady J stated in the civil case of Smith v ADVFN [2008] 1797 (QB) in relation to comments on an internet bulletin board:"... [they are] like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or 'give and take'."
Against that background, prosecutors should only proceed with cases under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than: - Offensive, shocking or disturbing; or
- Satirical, iconoclastic or rude comment; or
- The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.
If so satisfied, prosecutors should go on to consider whether a prosecution is required in the public interest. (Emphasis added).
Although this may still appear to be a broad-reaching assessment on whether something is harassing or not, the context of individual acts is always in regards to communications CAUSING ACTUAL HARM - for a prosecution to proceed the accuser has to test against high threshold that alleged abusive comments caused themselves objective, genuine distress - an ex-girlfriend saying she's going to break into their lovers house and kill them whilst they sleep is more likely to be considered an actual threat than the same being said by some rando' on Twitter.
So, if one were being slightly more conspiratorial it's possible to interpret the guidelines to be overly broad, and they are in some respects. But they are also quite clear as to what constitutes an offense - "shitposting" or "trolling" and being a "shitlord" or "troll" aren't specifically qualifiers.
Intent is.
However, that doesn't mean the guidelines are not going to be open to abuse because, whether something is or isn't harassment still seems to be in the eyes of the beholder to a significant degree; although the guidelines are worded such that they should prevent frivolous prosecutions, it doesn't mean individuals, with or without political or other motivations, won't abuse the system to 'get at' those they don't like rather than because they may have been subject to harm - there is no mention in the guidelines of dealing with people that do this.
Obviously the downside to all of this might be that many people with genuine grievances feeling like they are being hard-done by and not served by the system. As unfortunate as this may be, this likely means they failed the objective test at the time of making a claim and didn't provide, or were unable to provide, sufficient evidence for a prosecution to go forward - this is why it's important to report abusive behaviors and incidents to service providers like Twitter et al using their reporting/blocking tools,
a 'history' of abuse better establishes an intent on the individuals behalf to 'harass' in a criminal sense, making it easier to prosecute.
