4908 Facebook and Twitter Postings were reported to Police in 2011…’By using offence as the trigger for prosecution, you are putting the power of censorship into the hands of people who may chose to be offended for political gain’

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See article from dailymail.co.uk See article from huffingtonpost.co.uk

29 police forces have revealed statistics about crimes involving Facebook and Twitter in a Freedom of Information request. In 2008, a total of 556 complaints were made to police about social media postings on these 2 site. This had increased to 4,908 reports last year. The figures also show 653 people were charged for social networking crime in 2011. Greater Manchester Police charged the highest number of people, at 115. Lancashire Police received reports of six threats of murder and there were numerous reports of sexual offences and fraud. But presumably the large part were claims of insult, offence or political incorrectness. Nick Pickles, director of civil liberties campaign group Big Brother Watch, said: These figures show just how badly some police forces had lost all proportion when dealing with social media. So many arrests was clearly undermining freedom of speech and while the new guidance should reduce the problem, hundreds of people now have criminal records for the rest of their lives when it is far from clear they should do. The law around speech crimes is still in need of a total overhaul as the legislation that led to some of the more absurd prosecutions remains in place. Chief Constable Andy Trotter, the Association of Chief Police Officers’ lead on communications, said forces must prioritise crimes which cause genuine harm, rather than attempting to curb freedom of expression. Director of public prosecutions Keir Starmer QC announced the new guidelines on how people who post offensive messages on Facebook and Twitter should be dealt with. Hopefully reducing the number of people prosecuted for trivia. Robert Sharp, campaign manager for English PEN, which lobbies on free speech and art internationally, said the prosecutions for hate online had been: All young men between the ages of 18 and 22, they are all from disadvantaged backgrounds, and the things that they have been prosecuted for have been immature and inarticulate. There’s almost a criminalisation of adolescence, and of poor literacy, that’s one issue that seems to have emerged. The communications laws being used are for grossly offensive messages. Offence as the trigger for prosecution is still a big problem. The case that is the most important is that of Azhar Ahmed, he is the only case of an ethnic minority. He posted something silly and illiterate about how soldiers were going to hell. He was prosecuted because far-right activists made a co-ordinated campaign to have him arrested. So by using offence as the trigger for prosecution, you are putting the power of censorship into the hands of people who may chose to be offended for political gain. That’s a big deal for censorship.

Restricting Prosecutions for Insults…Details about new DPP guidelines on prosecuting social media communications

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See article from blog.cps.gov.uk See Consultation closing 13th March from cps.gov.uk See Interim Guidelines [pdf] from cps.gov.uk

The Director of Public Prosecutions, Keir Starmer QC, has published interim guidelines setting out the approach prosecutors should take in cases involving communications sent via social media. The guidelines are designed to give clear advice to prosecutors and ensure a consistency of approach across the CPS to these types of cases. Starmer said: These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law. They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other. The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression. The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it. We want the interim guidelines to be as fully informed as possible, which is why we held a series of roundtable discussions and meetings with Twitter, Facebook, Liberty and other stakeholders, police and regulators, victim groups, academics, journalists and bloggers, lawyers and sports organisations ahead of drafting them. I would now encourage everyone with an interest in this matter to give us their views by responding to the public consultation. Initial assessment As part of their initial assessment, prosecutors are now required to distinguish between: Communications which may constitute credible threats of violence Communications which may constitute harassment or stalking Communications which may amount to a breach of a court order Communications which do not fall into any of the above categories and fall to be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false. Those offences falling within the first three categories should, in general, be prosecuted robustly under the relevant legislation, for example the Protection from Harassment Act (1997), where the test set out in the Code for Crown Prosecutors is satisfied. Cases which fall within the final category will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest. The high threshold Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 engage Article 10 of the European Convention of Human Rights, therefore prosecutors are reminded that they must be interpreted consistently with the free speech principles in Article 10. Prosecutors are also 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. They should only proceed with cases involving such an offence where they are satisfied 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. The public interest In line with the free speech principles in Article 10, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate. A prosecution is unlikely to be both necessary and proportionate where: a) The suspect has swiftly taken action to remove the communication or expressed genuine remorse; b) Swift and effective action has been taken by others, for example service providers, to remove the communication in question or otherwise block access to it; c) The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or d) The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression. The age and maturity of suspect should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and as such prosecutions of children are rarely likely to be in the public interest.

In Remembrance of British Free Speech…Kent police accused of malicious use of the Malicious Communications Act

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A man has fallen victim to Kent Police who detained him for posting an image of a burning poppy on Facebook. He was detained on Sunday night on suspicion of making malicious telecommunications. The force tried to justify their attack on free speech in a statement: A man (was) interviewed by police this morning following reports that a picture of a burning poppy had been posted on a social media website. Officers were contacted at around 4pm yesterday and alerted to the picture, which was reportedly accompanied by an offensive comment. The man was later released pending further inquiries. His detention was met with disbelief on Twitter, where people mounted a fierce discussion over civil liberties. David Allen Green, a journalist and lawyer for the New Statesman, tweeting as Jack of Kent, wrote: What was the point of winning either World War if, in 2012, someone can be casually arrested by Kent Police for burning a poppy? Australian musician and comedian Tim Minchin also expressed his incredulity, tweeting: You’ve a right to burn a (fake!) poppy. Whether I agree with the action is utterly irrelevant. Kent Police are out of line.

Getting the General Picture…Examining the extent of Dangerous Pictures prosecutions in Scotland

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See  article from  caan.org.uk

The Consenting Adult Action Network (CAAN) have been researching the extent of Dangerous Picture prosecutions in Scotland. The Scottish variant of the law against extreme porn was enacted in March 2011 and the period under analysis in this report is August 2011 to August 2012. Via a Freedom of Information request found that 41 cases of Dangerous Pictures had been investigated. 27 cases are still in progress, and the outcome of the 14 case resolved so far is: 8 cases dropped 1 not convicted 5 convicted. It is not yet clear as to the pattern behind the prosecutions. South of the border, nearly all prosecutions are linked to investigations for other offences (most frequently linked to various forms of child abuse). Extreme porn prosecutions are then either used to top up the original charges or else used for vindictive prosecutions should the main charges fall through as in the notable case of Simon Walsh. …Read the full article

Unthreatening and Unabusive…Which is more than you can say for Public Order Law. Christian Voice member wins public order case

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See  article from  pinknews.co.uk

A Christian activist has been found not guilty of a public order offence after he handed out leaflets for the group Christian Voice that criticised Tesco’s decision to donate ฃ 30,000 to this year’s World Pride. Raj Bhachoo was arrested in January outside a Tesco store in Kent where he allegedly distributed anti-gay leaflets relating to Tesco’s sponsorship of a family area at the July 7 event. Stephen Green, national director of Christian Voice, who previously described World Pride as a display of depravity, said in a statement: Christians just keep winning these Section 5 freedom of speech cases. It is not against the law to preach against sodomy, to tell the public the facts about homosexual lifestyles, nor to display graphic images of the effects of abortion. These things might upset people, but they are not threatening, they are not abusive, they are not insulting and they are not against the law.

Hopefully the CPS to Become Less Prone to Easy Offence…CPS set to reconsider the definitions of insults before they end up prosecuting everyone in the country

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Thanks to Nick See  article from  blog.cps.gov.uk

Keir Starmer, the Director of Public Prosecution has made a statement after deciding to pursue a case involving insulting tweets. Starmer said: On 30 July 2012 Daniel Thomas, a semi-professional footballer, posted a homophobic message on the social networking site, Twitter. This related to the Olympic divers Tom Daley and Peter Waterfield. This became available to his followers. Someone else distributed it more widely and it made its way into some media outlets. Mr Thomas was arrested and interviewed. The matter was then referred to CPS Wales to consider whether Mr Thomas should be charged with a criminal offence. The Communications Act 2003 makes it an offence to send a communication using a public electronic communications network if that communication is grossly offensive. It is now established that posting comments via Twitter constitutes sending a message by means of a public electronic communications network. It is also clear that the offence is committed once the message is sent, irrespective of whether it is received by any intended recipient or anyone else. The question in this case is therefore whether the message posted by Mr Thomas is so grossly offensive as to be criminal and, if so, whether a prosecution is required in the public interest. There is no doubt that the message posted by Mr Thomas was offensive and would be regarded as such by reasonable members of society. But the question for the CPS is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made. Context and circumstances are highly relevant and as the European Court of Human Rights observed in the case of Handyside v UK (1976), the right to freedom of expression includes the right to say things or express opinions …that offend, shock or disturb the state or any sector of the population. The context and circumstances in this case include the following facts and matters: (a) However misguided, Mr Thomas intended the message to be humorous. (b) However naive, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family. (c) Mr Thomas took reasonably swift action to remove the message. (d) Mr Thomas has expressed remorse and was, for a period, suspended by his football club. (e) Neither Mr Daley nor Mr Waterfield were the intended recipients of the message and neither knew of its existence until it was brought to their attention following reports in the media. This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield, it was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse. Against that background, the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that on a full analysis of the context and circumstances in which this single message was sent, it was not so grossly offensive that criminal charges need to be brought. Before reaching a final decision in this case, Mr Daley and Mr Waterfield were consulted by the CPS and both indicated that they did not think this case needed a prosecution. This case is one of a growing number involving the use of social media that the CPS has had to consider. There are likely to be many more. The recent increase in the use of social media has been profound. It is estimated that on Twitter alone there are 340 million messages sent daily. And the context in which this interactive social media dialogue takes place is quite different to the context in which other communications take place. Access to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions. Against that background, the CPS has the task of balancing the fundamental right of free speech and the need to prosecute serious wrongdoing on a case by case basis. That often involves very difficult judgment calls and, in the largely unchartered territory of social media, the CPS is proceeding on a case by case basis. In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained. But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest. To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration. In the first instance, the CPS will draft interim guidelines. There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible. But this is not just a matter for prosecutors. Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

A Waste of Police Time…Man fined 220 quid for a trivial email insult to an MP

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See  article from  guardian.co.uk

A man who emailed a trivial insult to a Tory MP after the politician was headbutted by a rival at Westminster was fined ฃ 110 and ordered to pay ฃ 100 costs. He was also given a restraining order against contacting the MP directly or indirectly for 12 months. Nicholas Scales told MP Stuart Andrew to stop wasting police time and get your fucking job done , Leeds magistrates court heard. Scales said Eric Joyce, the Labour MP who attacked Andrew in the Strangers Bar at the House of Commons in February,probably knocked some sense into your small-minded Tory mind . The rant continued, saying if the MP had ever been out in Leeds or Bradford he would have known how to defend himself. Scales, who pleaded guilty to sending a malicious communication last month, will pay the fine and costs out of his benefits. Lin Burgess, chairman of the bench, told him: We note your previous good character, early guilty plea and co-operation with the police and have had the benefit of a lengthy pre-sentence report. We consider this a serious offence due to the content of the communication sent.

BBFC Mentioned in Dispatches…BBFC at meeting to discuss continued persecution of images of legal sex

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See  article from  obscenitylawyer.blogspot.co.uk by Myles Jackman

[Re] Simon Walsh’s acquittal at the Kingston Crown Court for allegedly being in possession ofextreme pornography under section 63 of the Criminal Justice and Immigration Act. The five images in question depicted anal fisting and urethral sounding, both activities featured in the Peacock Trial. At the time I expressed the view that the CPS, along with the Metropolitan Police and the BBFC needed to review the guidelines. I can report that, post Michael Peacock’s #ObscenityTrial and pre Simon Walsh’s #PornTrial the CPS did indeed meet with representatives from the Met and BBFC. However, I am told that the Peacock Trial was considered to be a singular prosecution and therefore the result of the review process was not to amend the guidelines in any way, shape or form. Therefore more defendants may have to put their lives on hold like Michael and Simon did whilst challenging such intrusive prosecutions. It is my contention that the matter is now beyond the remit of the CPS, Met and BBFC and that the subject requires the scrutiny of the Home Secretary, Ministry of Justice and the Law Commission and that questions should be asked in the House. …Read the full article I guess the BBFC were just told to continue to cut material considered extreme or obscene by the CPS and police. Hopefully they had no part in the decision to continue to persecute people for images or legal and consensual sex.

Police Don’t Need New Laws for Twitter…But it’s us that need new laws to preserve free speech

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See  article from  telegraph.co.uk

Twitter should take action as quickly as possible to deal with supposed abuse on its website, according to a senior police officer. Stuart Hyde, chief constable of Cumbria police who speaks on e-crime for the Association of Chief Police Officers, said it was right for police to intervene in cases of bullying on twitter. Asked if new laws were needed, Hyde told BBC Radio 4′s Today programme: No, I think we have got quite a lot of legislation, dating back to the Malicious Communications Acts of 1998 and 2003. There is a lot there that helps us and gives us the power to do stuff. This is a new technology, a new way of communicating, it has grown exponentially. There hasn’t been separate legislation, so we are using legislation that wasn’t particularly created for this, but it works reasonably well most of the time. We are learning from it, there are things that have sometimes gone wrong and I think sometimes it is important that we make sure we provide the service people need. If people come to us and say ‘I am really upset, I’ve been offended, my life has been made a misery and I want somebody to do something about it’, then yes the police should, whenever possible, try to help. I don’t want police officers dragged off the streets to deal with frivolous complaints. Where these complaints are pretty serious, then it is quite right that we should intervene, and we do that. It is important to look at the whole context. It is not just about one tweet, it is a whole range of tweets. Look at what the individual has done — is this a concerted attempt to have a go at one individual in a way that passes the threshold for offences against the law? If it is, then clearly we should intervene and do something to stop it. But Hyde said that police have so far not received large numbers of complaints about abusive Twitter messages.

An Obscene Legal Manoeuvre…Man pleads guilty to an obscene private online chat after being offered a lenient sentence

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So if the authorities want to invent a new angle to a law they prosecute someone, offer a lenient sentence for pleading guilty, then take the inevitable successful prosecution as justification for an extended law. See  article from  kentonline.co.uk

Kent Police have set a legal precedent after successfully prosecuting a man for making lewd comments about children during a private online conversation. Gavin Smith was charged in 2010 with nine offences of publishing an obscene article. Under the Obscene Publications Act, it is an offence to supply material ( interpreted as distribute, circulate, sell, hire, give, or lend) , that tends to deprave and corrupt those view it. When the case first came before magistrates, it was discharged on arguments of no case to answer. However the CPS said they had received new evidence in this matter and, following a review, decided to re-charge Smith. At his first trial at Maidstone Crown Court in November last year, the court heard that Smith had online conversations in which he spoke about molesting and spanking children. His counsel claimed Kent Police were on a moral crusade by prosecuting Smith under the Obscene Publications Act 1959. The jury in the trial was discharged by Judge Charles Macdonald QC after hearing legal arguments. His barrister Roger Daniells-Smith told the court on that occasion: This is a test case. We say it is part of a political campaign by Kent Police. We say this is a moral crusade by Kent Police to extend the law, to try to get this material included as extreme pornography.But their arguments to have online conversations included fell on stony ground , he said: They therefore had nothing other than to try (to prosecute) under this act. But the court decision was subsequently appealed by the Crown Prosecution Service, with the Court of Appeal ruling in their favour. Smith was due to go on trial for a second time this week. But after being given a Goodyear direction , in which a judge indicates what the likely sentence would be if a defendant pleads guilty, Smith admitted all nine offences after being told that the sentence would likely be a suspended jail term or community order. Adjourning sentence for reports, Judge Philip St.John-Stevens described the case as unusual . The case could now open the doors for police forces across the country to charge suspected offenders for online conversations.