"Sticks and stones will break my bones, and calling names will hurt you!"
The old school yard taunt may take a new direction from this week following the publication of interim guidance on prosecuting cases involving social media websites such as Facebook and Twitter. For where the proposed rules fail to protect innocent online users under criminal law, the civil courts may end up being swamped by claims against so-called Internet trolls for their tirades of insults and other inappropriate online behaviour.
In a nation becoming increasingly litigous with 'where there's blame, there's a claim' advertisements all over the place, I can see a brand new legal services industry festering out of the insults, innuendos and other bad mouthed comments made over social media websites. Online privacy, free speech and press freedoms are now hotly debated topics following the Leveson Inquiry, and more people may be encouraged to follow in the footsteps of Lord McAlpine and sue for damages to personal reputation.
Keir Stamer QC, the UK's Director of Public Prosecutions is consulting on the interim guidance following a spate of recent high profile cases where online users have been bullied or insulted. In some cases, the victims of serious crime have also been named online in clear breach of court rules, resulting in further action being taken against the perpetrators. The guidelines aim to establish a clear threshold on the acceptable level of behaviour under criminal law by striking a balance between the right to express an opinion and illegal action.
The consultation ends on 13th March 2013
In his statement, Mr Stamer 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."
Both the Police and victim support organisations have welcomed the consultation on the interim guidance. Government spending cuts and the pressure on other police resources require better targeting on cases involving social media websites, and these must be balanced against the impact on alleged victims. Chief Executive of Victim Support Javed Khan said:
"Victims tell us that sustained and vindictive targeting on social media can leave long lasting emotional and psychological scars, so we warmly welcome clarification on how prosecutors will deal with online threats or harassment.
"The distinction between communications which constitute a credible threat and those which may merely cause offence is sorely needed."
What's relevant to business?
Social media, information and online networking companies will be particularly interested in how the guidelines develop because of their relationship with online users and legal requirements to disclose customer confidential information during a criminal investigation. But any organisation which allows its employees to use the Internet also needs to ensure that social media / Internet policies are in place to ring-fence what browsing is and is not allowed. Companies can be sued for not taking appropriate action to stop workers from abusing others when online using their corporate systems.