Internet users who make offensive comments on social networks should not be prosecuted unless there has been a clear breach of the law, UK Director of Public Prosecutions (DPP) Keir Starmer QC has said.
The DPP has issued draft guidelines in the light of a clutch of recent cases where individuals have been arrested after remarks made on Twitter and Facebook were deemed by the authorities to be abusive of threatening.
These include the case of footballer Daniel Thomas, arrested in August after making allegedly homophobic comments on twitter about British Olympic divers Tom Daley and Peter Waterfield which Starmer said he believed were "misguided" but nevertheless intended to be humorous.
"This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain," said Starmer. In assessing these and other remarks, context should always be taken into account.
"It was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse," he added.
Although the Communications Act 2003 made it an offence to send "grossly offensive" remarks, this was intended to cover those intended as threats or incitement. Offence alone was not sufficient grounds for prosecution. Freedom of expression included the right to express opinions that offended, shocked or disturbed, he said.
"Against that background, the CPS has the task of balancing the fundamental right of free speech and the need to prosecute serious wrongdoing on a case by case basis." Prosecutions should only be undertaken when it was in the public interest to do so.
Although welcome, the DPP's clarification re-states probably what many citizens assumed of the law until social media started generating a stream of contentious arrests; trivial, flippant, and even abusive remarks are legal as long as they are not intended to intimidate or threaten.
The problem is that because on social media remarks are broadcast to large numbers of people who don't know the individuals concerned, interpreting boundaries between abuse and threat can prove difficult.
In July Twitter jokester Paul Chambers won an appeal against his controversial conviction for threatening to blow up Robin Hood airport with the tweet "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!
The court accepted that the message had also been intended as a humorous remark to his followers alone and was not meant as a literal threat to the airport.
The DPP said he planned to publish final directions for prosecutors dealing specifically with social media cases after a consultation period.
Starmer appeared to issue a veiled warning that social networks should better regulate content for themselves, something many are reluctant to do for fear of becoming bogged down in complex issues of free speech.
"The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken," he said.