New guidelines from the Crown Prosecution Service (CPS) on social media may have wide ranging consequences for offenders.
Retweets do equal endorsements if it encourages the sharing of ‘grossly offensive’ materials. Other acts of “virtual mobbing” which incite hatred, can occur criminal charges. Participating in this form of online behaviour may incur charges under the Serious Crime Act 2007.
Prosecutors are reminded that Section 1 of the Malicious Communications Act 1988 and Section 127 of the Communications Act 2003 concern online materials deemed ‘grossly offensive’. Yet, “a communication sent has to be more than simply offensive to be contrary to the criminal law”. So in practise, context matters. A high criminal threshold also concerns ‘public interest’ and the right of free speech.
The CPS does not want to curtail free speech but it calls on prosecutors to consider how online statements impact and harm victims. For example, if there is a hate crime element to the communication, or the offence is repeated, this will factor into the seriousness of any potential offence.
Age, however, does matter. The guidance calls on prosecutors to show due lenience for individuals under the age of 18 – as children and young people may lack the maturity to understand the seriousness of such communications. Pursuing minors in this category is ‘rarely’ in the public interest.
Curtailing freedom of speech is not taken lightly – and is restricted to the measures of necessity and proportionality. So, for example, a case may fail this test if a perpetrator demonstrated remorse for their actions, or the communication was not intended for a large audience, where the intended audience did not include the victim or ‘target’ of the communication.
If, however, the motivation for online abuse were motivated by prejudice towards the victim’s ethnic origin, religion or other protected characteristics, this could put comments into the threshold of ‘grossly offensive’. This is also true for communications made during tragic events, where certain communities are impacted.
If prosecutors are unsure about the varieties of the language around anti-Muslim hate, they are encouraged to contact support groups like Tell MAMA or the victim for further clarification. In a welcome move, the CPS also recognises the intersectionality of hate speech. A victim may, for example, be targeted online because of their perceived religious identity and sexual orientation.
As Director of Public Prosecutions Alison Saunders made clear: “The internet’s not an anonymous place where people can post without any consequences. People should think about their own conduct.
A CPS consultation on these guidelines will run for the next 13 weeks. Tell MAMA will continue to support the CPS in its understanding of the complexities of anti-Muslim hate.