Belfast Telegraph

Article 10 is no carte blanche to say whatever one likes on social media

By Paul McDonnell

The decision of the PPS not to prosecute Barry McElduff over a controversial video posted by him on Twitter again shines a light on the issues faced by users of social media, particularly in the context of criminal ramifications.

It is understood that the PPS investigation was to determine whether there was sufficient evidence to proceed with any prosecution under the Public Order (NI) Order 1987 and the Communications Act 2003.

The extent to which social media is now used to communicate controversial and often offensive material, particularly what is referred to as online trolling, has led to a marked increase in the number of prosecutions and convictions in recent years under the Communications Act.

The Act also covers phone calls, emails and other means of electronic communications.

It is an offence under the Act to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network.

Every case must be decided on its own merits and will involve assessment of such matters as an intention to cause the offence (legally referred to as the mens rea), the particular circumstances of the communication, and any competing European Convention rights before any prosecution is considered.

It has previously been held by the House of Lords that the test for "grossly offensive" is whether the message would cause gross offence to those to whom it relates (in that particular case ethnic minorities) who need not necessarily be the recipients.

The PPS also has to consider whether the suspect's intended purpose was to cause distress, gross offence, etcetera to the recipient.

In respect of messages not directed to a particular individual, that may be a more difficult matter to establish as it involves showing proof of an intention to cause the offence or a clear recognition that in so sending it offence would be caused.

In this regard it may well be that a blog or website comment may be insufficient to pass the test under the Act.

Those facing such charges are likely to call to their aid Article 10 of the European Convention on Human Rights.

This provides that everyone has the right to freedom of expression which includes the right to hold opinions and impart information and ideas.

However, the exercise of any such right may be prescribed by laws which protect the prevention of disorder and crime and protect the health and morals of a democratic society.

In essence, Article 10 is not carte blanche to say anything on social media under the guise of freedom of expression.

It has been held that Article 10 will not be a defence to using a telecommunication system to issue racist messages, promote extreme racist speech or to justify, for example, a blatant display of anti-Semitism or Holocaust denial, even if intended to be satirical and provocative.

Finally, prosecutors must be satisfied that it is in the public interest to pursue a prosecution and in this regard will often take account of matters such as the likelihood of re-offending, whether the communication was in the form of trolling or repeated attacks, and whether swift action was taken to remove the offending material and an apology issued.

It therefore seems that given the prolific use of social media, prosecutions under the Communications Act are likely to continue to rise where they are based on trolling or directed at a particular individual.

Any other types of communications are likely to involve detailed considerations of the issues highlighted above.

Paul McDonnell is a Belfast-based lawyer and editorial legal counsel for Independent News and Media (NI)

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