Now English social media users know the line between ‘troll’ and ‘criminal’

In online life, how offensive is too offensive? That may be a legally irrelevant question in countries that enjoy strong free speech protections, but it’s a very serious question in England and Wales.

As you may recall, this year saw an extraordinary series of jail sentences for online trolls there, for offences including calling public officials rude names and joking about missing children. The Crown Prosecution Service has apparently had to deal with 60 cases relating to ‘threats’ made over Twitter or Facebook in the last year and a half. The director of public prosecutions, Keir Starmer, said in October that he would look at the rules, and now he’s come back with some provisional guidelines (PDF warning) – finalized rules will follow after a public consultation.

“These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law,” Starmer said. “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.”

“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.”

According to Starmer, those making serious threats will be “prosecuted robustly”, while those just making tasteless jokes and comments will only face prosecution “if they cross a high threshold”.

So, how high is that threshold? Here’s where the whole business becomes even sillier that it may seem at first. Essentially, the rules are already there in various laws – it’s just that the English and Welsh prosecutors seem to need reminding:

They should only proceed with cases involving such an offence where they are satisfied that the communication in question is more than:

• Offensive, shocking or disturbing; or
• Satirical, iconoclastic or rude comment; or
• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

Starmer also pointed out that kids are, well, kids, so age and maturity should be factors when deciding whether or not to throw someone in jail for being rude.

The guidelines have led to some partly humorous interpretations and recommendations, such as this from The Guardian:

Credible threats will still be prosecuted, so go big or go to jail. Avoid plausible phrases such as “I’m physically going to punch you.” Instead, try the much less credible: “I’m going to hit you so hard we both get knighthoods.” How would that possibly happen? It wouldn’t. Granting you total legal immunity.

This isn’t over yet. That public consultation still needs to happen, and there may still be new laws that specifically address online speech – in case you haven’t already guessed, the existing laws seem to be open to a bit too much interpretation.

But Starmer’s interim guidelines should provoke relief among both general free speech advocates, and those who follow the development of online life. The fact is, what people say online may technically qualify as publication or telecommunications, but it’s pretty much what people might just say in the pub. And nobody’s prosecuting bad taste in that context.