It is perhaps unsurprising, that following the horrific pictures of the “Woolwich murderers”, which lead to the death of soldier Lee Rigby, a surge of anti-Muslim resentment raged across the UK. What also followed was a dramatic increase in criminal prosecutions made against individuals posting social media comments in connection with this event.
One of these cases concerned that of Michaela Turner, a 23 year old single mother who pleaded guilty to an offence contrary to section 127 of the Communications Act 2003. The court heard that Turner had been drinking when she made comments about the Woolwich attack on Facebook. Those comments included: “Feeling like burning down some mosques in Portsmouth, anyone want to join me?” Whilst in the past, others have received sentences of imprisonment for similar outbursts, Turner was fortunate to receive a suspended sentence of imprisonment.
Prosecutions of offences committed over social media have risen dramatically since 2008. According to Freedom of Information Act figures, in 2008, there were 556 reports of alleged crimes with 46 people charged. By 2012 figures had reached 4,908 reports of offences leading to 653 charges. More often than not, criminal investigations increase in the immediate aftermath of major news stories. Given we live in a society where it takes just seconds for someone to pick up their phone and type a message, over-stretched police forces also have to dedicate resources in investigating scores of Facebook and Twitter posts, to consider whether comments cross the threshold from what is distasteful, to behaviour that the courts deem to be criminal.
In response to these changes, the Crown Prosecution Services published their final guidance on prosecution of cases involving communications sent via social media. As Turner had pleaded guilty to section 127 of the Communications Act 2003 it is helpful to review the new guidance in context of this offence. An offence under section 127 is committed when a person: “(a) 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; or (b) causes any such message or matter to be so sent.”
In deciding whether Turner ought to be charged with an offence, the CPS lawyer reviewing her case would have needed to consider whether there was sufficient public interest in proceeding with the prosecution. Whilst it is clear that her comments could be perceived as being “grossly offensive, indecent, obscene or false”, the CPS must also be satisfied that those comments crossed a high threshold before the prosecution is considered to be in the public interest.
From a practitioner’s point of view, this is where the waters become murky. Whilst the CPS recognises that millions of communications are sent via social media every day, it is only in rare cases, that a prosecution should proceed despite an individual’s rights to freedom of expression under Article 10 of the European Convention of Human Rights. The CPS accepted the Court’s view that Article 10 includes protection of speech that has the potential to “offend, shock or disturb”.
However, the difficulty is that the interpretation of what is considered “grossly offensive, indecent, obscene or false” may be highly subjective and influenced by political pressures, as well as popular opinion and reaction to major news events. Michaela Turner’s case is reflective of this – despite the comment being made by a single mother, whilst drunk, to her limited Facebook audience, her prosecution was still considered to be a necessary and proportionate restriction on her Article 10 rights. Accordingly, it could be argued that the moral outrage at Lee Rigby’s death and the political anxiety concerning anti-Muslim attacks may have pushed her over the “high threshold” of tolerance when it comes to deciding what is or isn’t, in the public interest.