On Thursday, the retiring English Director of Public Prosecutions, Keir Starmer QC, published final guidelines for crown counsel on the approach they should take in cases involving communications sent via social media. The approach they take could be usefully read by Canada's prosecutors.
First step is to assess the content of the communication and the conduct in question. It distinguishes between :
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.
Communications which may amount to a breach of a court order.
In these three categories, cases should be vigorously prosecuted.
The final category consists of communications which may be considered grossly offensive, indecent, obscene or false. Such cases are subject to a high threshold scrutiny and in many cases a prosecution is unlikely to be in the public interest. English Twitter and Facebook users who post offensive messages online could avoid prosecution altogether by apologising, expressing "genuine remorse” or took “swift and effective action” to “remove the communication in question or otherwise block access to it”.
The Guidelines are the Crown's response to the High Court quashing the case of the disgruntled airline passenger who tweeted what was read as a threat:
On 6 January 2010, following an alert on "Twitter", the appellant became aware of problems at Doncaster, Robin Hood Airport, due to adverse weather conditions. He and Crazycolours had a dialogue on "Twitter". Two messages were referred to in the Crown Court. They were:
"@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism":
"@ Crazycolours: That's the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI".
In context, this seems to have been a reference to the possibility of the airport closing, but the picture was incomplete because no reply from Crazycolours was produced. Some two hours later, when he heard that the airport had closed, he posted the following message:
"Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"
The message was posted onto the public time line, which meant that it was available to be read by some 600, or so, of the followers of his "Twitter" postings
Mr Harmer said "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 [that] there should be a high threshold for prosecution in cases involving communications which may be considered grossly offensive, indecent, obscene or false".
"These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it."