Social Media prosecution guidelines announced - “If it would be illegal to say it on the street, it is illegal to say it online”

Writing almost three years ago for the Sunday Herald, I had expressed the view – in the context of the prosecution of Liam Stacey for tweeting racist comments about footballer, Fabrice Muamba – that: "The internet is no longer the unregulated forum it was during its infancy. There has been increasing confirmation, through judicial pronouncement and the legislature, that the laws which apply to the offline bricks-and-mortar world also apply to the internet."

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These sentiments were repeated today by the Crown Office and Procurator's Fiscal Service ("COPFS") in its "Guidance on cases involving Communications sent via Social Media", the gist of which is that "if it would be illegal to say it on the street, it is illegal to say it online" – the words of Lord Advocate Frank Mulholland QC. The Lord Advocate added: "[People] need to know that they cannot evade justice simply by hiding behind their computers or mobile phones".

The Guidance intends to ensure that the approach to prosecuting an offence is the same, irrespective of the communication channel used, be it online or offline.

The Guidance is careful to highlight that a stricter approach will not be applied online and that the COPFS will not be endangering our fundamental human right to freedom of expression by prosecuting people for satirical comments, offensive humour or provocative comments – general "banter", as the Guidance refers to it.

The Guidance provides that communications will be considered for prosecution where they:

  • specifically target an individual or group of individuals, such as hate crime, domestic abuse or stalking;
  • constitute threats of violence to people or property or attempt to incite public disorder;
  • breach a court order or release or publish information in connection with court proceedings where it is an offence to do so; or
  • are grossly offensive, indecent or obscene or communicate false information about an individual or group of individuals and could give rise to adverse consequences for the individual(s) concerned.

Not only does the Guidance highlight more than ever the need to exercise appropriate personal "netiquette" when communicating online via informal mediums, such as Twitter and Facebook, but it also underlines the importance of effective and regular social media training and putting in place a social media policy for your employees if you are an employer. While most employees recognise the dividing line between their work and personal lives, the odd, frustrated employee may be inclined to vent off "steam" after a day at work, and social media is often the channel of choice for doing so.

Employees need to be made aware that "heat of the moment" comments made online about their fellow employees – or, indeed, the online sharing of indecent images of fellow employees (a common occurrence at this time of year) – may be seen and "shared" by millions almost instantaneously and, more importantly, will now be treated just as seriously online as they would offline and may result in criminal prosecution.

The Guidance can be accessed here.

For advice on updating your social media policy please contact Daradjeet Jagpal on 0141 227 9403 or daradjeet.jagpal@harpermacleod.co.uk.