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Author Topic: CPS Guidelines on Prosecuting Social Media 'crimes'  (Read 1606 times)

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Offline kat

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CPS Guidelines on Prosecuting Social Media 'crimes'
« on: March 03, 2016, 06:04:13 PM »
Only had a chance to scan through this (see below posts for update(s) - "the 'harm' threshold/justification", "violence against women and girls" ), a consultation on updating the way the UK Crown Prosecution Services prosecutes crimes where social media is a factor. It's been picked up by a few 'free speech' sites where its raised a few concerns, especially because "Violence Against Women & Girls" is discussed at some length.

 - Consultation on Interim Revised CPS Guidelines on Prosecuting Social Media Cases





Offline ratty redemption

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when you've had a chance to go through the documents more thoroughly, could you summarize them for us? especially the vawg part.

Offline kat

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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;
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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:
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"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...
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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:
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"... [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.

Offline kat

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As for the "Violence Against Women & Girls" angle, its too complex to dissect because the abuses attributed to the use of social media are so intricately tied to physical violence, the bias (in a good sense) overbalances the argument. Essentially the context is of preventing genuine (real) acts of violence against women and girls such that all the data and arguments are skewed towards supporting that goal.
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The VAW strategy is an overarching framework to address crimes that have been identified as being committed primarily, but not exclusively, by men (94%) against women (89%). [Data from the VAW Strategy and Equality & Diversity Impact Assessment 2008, relates to CPS data on prosecutions rather than police recorded crime.]. It is an umbrella for a set of crime types that have a pattern related to gender.
In that context it doesn't matter that men and boys suffer different types of abuse; it's not without irony that we know very little about this because it's rarely reported or considered an issue by society (you have to really dig to find stats on it). To that end, the entire shtick of the CPS guidelines is predicated on VAWG but throws in the 'inclusive' caveat, almost as an afterthought, so as not to seem biased ("The individual policies that sit within the VAW framework are gender neutral and will be applied fairly and equitably to all perpetrators and victims of crime, both men and women.").

But that's getting slightly off-topic. The general thrust of the guidelines is how CPS prosecute activities as they pertain to continuations (largely) of negative actions against women and girls rather than simply their going after "shitposters" on Twitter or Reddit. The guidelines appear quite firmly against doing that in principle, but it depends if a case can be proved to be there rather than there not being any interest - if there's enough reason/evidence a case will be pursued against a "shitposter" regardless it seems. And this is indeed dangerous ground; political/ideological differences motivating calls for action have no business being processed, and it's the one point of contention the Service needs to specifically address, i.e. shortfalls in dealing with frivolous ("vexatious") claims; the guidelines are largely concerned with filtering those from the system rather than prosecuting them; abuse of the system itself is not considered an issue even though it is known to happen (again stats are difficult to find as no-one admits to it happening).

Offline kat

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CPS publishes new social media guidance and launches Hate Crime consultation
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New Crown Prosecution Service guidance has set out the range of offences for which social media users could face prosecution. The guidance, published today (10 October), will be used to inform decisions on whether criminal charges should be pursued.

[...]

The new social media guidelines for prosecutors make clear that those who encourage others to participate in online harassment campaigns - known as 'virtual mobbing' - can face charges of encouraging an offence under the Serious Crime Act 2007.

 

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