New guidelines have been introduced by the Crown Prosecution Service (CPS) that prosecutors should consider in relation to cases where it is alleged that criminal offences have been committed by the sending of a communication via social media. Prosecutors must be satisfied that a prosecution would satisfy two tests: an evidential test, and a public interest test.
The new guidelines cover all communications via social media categorised as follows:
- Communications which may constitute credible threats of violence to the person or damage to property
- Communications which specifically target an individual or individuals and which may constitute harassment or stalking, controlling or coercive behaviour, revenge pornography, an offence under the Sexual Offences Act 2003, blackmail or another offence
- Communications which may amount to a breach of a court order or a statutory prohibition; and
- Communications which do not fall into any of the categories above fall to be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false.
The guidelines specifically include the act of setting up a false social media account in order to carry out acts under categories 1, 2 and 4, provided that the act satisfies the tests set out above.
The guidelines cover instances of a person setting up a false profile in the name of the victim and posting information that could be damaging to their reputation. This may amount to an offence of grossly offensive communication or harassment.
One example is the case of a person setting up a false account to post “revenge porn”. Revenge porn was introduced by the Criminal Justice and Court Act 215 and covers the act of publicly shaming a former partner by posting intimate images or comments about that person with the intention of embarrassing or humiliating them.
Prosecutors have been advised to examine both the online and offline pattern of behaviour in making their assessment.
The CPS has advised that there must be a balance between prosecuting people for malicious communications and protecting free speech. Therefore only "grossly offensive" material should lead to prosecution. They have also advised that children should rarely be prosecuted due to their lack of adult judgement.
For more information on offences relating to social media, please do not hesitate to contact Dan Hart, Solicitor Advocate in our Criminal Team, on 01279 755777.