The Director of Public Prosecutions in the UK may establish a policy about when ‘grossly offensive’ messages on social media would be prosecuted that would consider the reach of the message, i.e. how many people may have been exposed to it. One noted media lawyer has said that’s a bad idea, and the better test is just how offensive the message is, regardless of how many saw it. A discussion of the topic is here.
Under section 127 of the Communications Act it is an offence if someone ‘sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.’
I don’t take the DPP to be saying that a one-to-one message on a social medium would never be prosecuted, but as a matter of approach, the reach would matter.
What do you think? Is that a fair basis for prosecution, or should only the offensiveness of the message count – assuming that the person deciding to lay the charges judges that it meets the standard of ‘grossly offensive’?
Have we any equivalent to such an offence in Canada? We have a ban on hate speech – should prosecutions for that depend on how many people become aware of it? We also have section 13 of the Canadian Human Rights Act that deals with the communication of ‘hate messages’ by telephone or on the Internet. The latter would cover social media. (The link here goes into some detail about the provision and why it was extended to the Net.)
So: should scope matter as much as substance here? Is it all a matter of allocating prosecutorial and court resources efficiently? Could someone defend a charge on the basis that the message was not as offensive (whatever the test happens to be) as a more narrowly distributed message that did not lead to charges? (Sounds unlikely to me – just as it’s not a defence to a charge of driving 20 kph over the speed limit that the car in front of you was driving 30 kph over.)