UK: Social Media: Anti-Social, Criminal But Also Tolerable

Where once news was obtained from the inky-print of hard copy newspapers and from cracking RP voices over the wireless, today social media is the voice that seems to shout the loudest. And in shouting loudly, or quietly, on social media, those who abuse it and infringe the rights of others may well be acting unlawfully. But when does a tweet become a criminal offence, or a blog merit a spell in prison?

Back in 2013, the then Director of Public Prosecutions grappled with the thorny issue in guidance issued to prosecutors. Taking up where he left off, yesterday, new social media guidelines came into force for prosecutors. The guidelines are intended, they say, to 'ensure that there is a consistency of approach across the CPS' for charging or for early advice to the police.

Two stage test

There is a relatively straightforward, but nonetheless essential, two stage test for starting a prosecution: 'prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test has two stages; the first is the requirement of evidential sufficiency and the second involves consideration of the public interest'. Both are important in cases of social media, where evidence may be limited and where, no matter the 'in principle' fact of an offence, the public interest in pursuing a prosecution is not made out. This is of particular importance when weighing the rights of the individual potential victim against the valuable right of free speech.

Categories of communications

There are four categories of communications:

Category 1: communications which may constitute credible threats of violence or damage to property;
Category 2: communications which specifically target an individual and which may constitute harassment, stalking, controlling or coercive behaviour, revenge porn, an offence under the Sexual Offences Act 2003 or blackmail;
Category 3: communications which may amount to a breach of a court order;
Category 4: communications which may be considered grossly offensive, indecent, obscene or false.

Categories 1 to 4 should be prosecuted 'robustly', while there is a 'high threshold' for prosecution with respect to category 4 and where 'in many cases' the guidance says, 'a prosecution is unlikely to be in the public interest'. It seems therefore, that in the interests of free speech, we should all have thick social media skins when it comes to being offended online.

Coercive behaviour

Care is taken to seek to protect those who are subject to controlling or coercive behaviour. With apologies to those who don't listen to (what?!) or who have had enough of The Archers, take our now happily released Helen Titchener (née Archer). Had evil hubby Rob practised his dark arts of abuse on Helen via social media, rather than in the confines of the marital home, and the CPS would have given consideration to these guidelines when considering whether to prosecute.

Children and revenge porn

Another important point is made with regard to revenge porn. Anathema to most adults (some sports stars and celebrities aside) sending or taking photos of ones genitals is an apparent hobby of the younger generation. But it goes wrong (if it were ever right) when the pictures land in the wrong hands, and where young victims are threatened, bullied or humiliated as a result. Our youngsters need to be protected, it appears, from no one more than themselves. But is the hammer of criminal prosecution and the burden that will leave on a young life too heavy an instrument to deal with this nutty phenomena? The guidelines suggests so: 'One factor that may warrant particular consideration is the involvement of younger or immature perpetrators. Children may not appreciate the potential harm and seriousness of their communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18′.

Causing offence

We can all be offended by what is written on social media. And as the US election campaign is illustrating over and again, what one of us may find grossly offensive, another may find tolerable, even vote-worthy. Various decisions have had to deal with this difficult issue, the courts considering, for example, that what they need to assess is whether the language used 'is beyond the pale of what is tolerable in our society' (DPP v Collins [2006]). Free speech is valued in our democracy; even where it can offend some of us. We do not all have the same tastes, the same proclivities, the same sense of humour. So the guidance makes clear that online, 'banter, jokes and offensive comments are commonplace and often spontaneous'.

Public interest

The guidance recognises that there is potential for 'a chilling effect on free speech' with online prosecutions. Regard should be had when considering the public interest argument in prosecution, to the harm caused to the victim, to the age and maturity of the perpetrator, to expressions of genuine remorse, swift remedial action taken, intention and mistake.

How the guidelines will be interpreted – and how consistently – will be watched by online addicts, bloggers, commentators, parents and lawyers. Serious online issues will presumably face the full force of the law. But it seems that in an online world, where 'access is ubiquitous and spontaneous', we may have to turn an online cheek or take offensive online humour with a pinch of salt.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions