Can tweeting get you arrested?
Can tweeting get you arrested?
Recently there have been some high profile cases involving arrests and prosecutions of people using social media. These include the ‘Twitter Joke Trial’ where Paul Chambers was convicted of sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character (contrary to s127 Communications Act 2003) following a tweet saying he would ‘blow the [East Midlands] airport sky high’. Chambers appealed and his conviction was quashed by the High Court who found that the message had not created fear in those who saw it. Following this trial the Crown Prosecution Service has now issued interim guidelines on when messages sent by social media can be considered to be a criminal offence.
The guidelines say that prosecutions should only occur when the existing two stage test for prosecution is met; i.e. that the prosecution is in the public interest and that there is a realistic prospect of conviction. The guidelines go on to say that prosecution against people using social media should only be considered in the following circumstances:
Where the communication constitutes a ‘credible threat’
The guidelines state that the only ‘credible threats’ should be prosecuted. These include a threat to kill, contrary to s16 of Offences against the Person Act 1861, or threats that form part of a campaign of harassment. These types of offences have not been created to deal with social media and can also be committed offline.
Where the communications target a specific individual
Should someone repeatedly target the same person with messages on social media, this could amount to harassment or even stalking. Messages that seek to blackmail someone will be treated as such.
Where the communication is the breach of a court order
Tweeting details of someone who the court have ordered shall remain anonymous, for example a rape victim, is an offence as is sending any message in direct contravention of a court order.
Where the communication is grossly offensive, indecent, obscene or false
If the message does not fit into any of the above categories, it could still be an offence under s1 Malicious Communications Act 1988 or s127 Communications Act 2003.
A message is an offence under s1 Malicious Communications Act if it is sent electronically to another and is indecent or grossly offensive, conveys a threat, or is false and there is intention to cause distress or anxiety to the recipient. The message does not have to reach the intended recipient as long as it has been sent.
An offence is committed under s127 Communications Act if a message is sent through a public electronic communications network, and is ‘grossly offensive’ or of ‘indecent, obscene or menacing character.’ It is also an offence to send a false message to ‘cause annoyance, inconvenience or needless anxiety’
However the guidelines recognise that thousands of messages are sent on social media every day, not just on Twitter but on sites such as Facebook and YouTube. They say that prosecutors must have regard to every individual’s right to free speech, and therefore prosecutions should only take place where messages are more than; offensive, shocking, rude or unfashionable.
The guidelines seek to avoid a repeat of the ‘Twitter Joke Trial’ stating that a prosecution would not be warranted where the message ‘does not create fear or apprehension’ in those who see it and clarifying that to be an offence messages have to go beyond the simply rude or shocking.
What should you do if you are arrested?
You will always be eligible for free legal advice if you are interviewed by the Police about an offence. EmeryJohnson have legal representatives available 24 hours a day, 7 days a week and will always be available to attend the police station to advise you.
At EmeryJohnson we have considerable experience dealing with all kinds of criminal cases and can provide you with expert legal advice and representation from the Police Station all the way through the court process