Employment Eye November 2018
Nov 14 2018
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New guidelines have been issued by the Crown Prosecution Service for prosecutors deciding whether or not a criminal offence has been committed by the sending of a communication via social media. Laurie Child reports.
The difficulties in defining, and where appropriate regulating, social media use are well known to employers. The term "social media" encompasses the use of websites and applications to create and share content (such as information, ideas, pictures and videos) or to participate in social networking and discussion. This may include communications sent by email, text messages and other forms of electronic communication.
As the number and types of social media platforms increase, the CPS has issued new guidelines intended to aid prosecutors in identifying when the nature or content of a communication sent by social media should be prosecuted as a criminal offence. The guidelines provide some assistance to employers in managing the use and effects of social media in the workplace, but also demonstrate the breadth of considerations in this area.
Under the overarching CPS requirements of sufficient evidence and consideration of the public interest, the new guidance requires prosecutors to conduct an initial assessment in order to identify the type of social media communication at issue.
The communication should be categorised as one of the four following types.
1. Communications which may constitute threats of violence to the person or damage to property.
2. Communications which specifically target an individual or individuals and which may constitute harassment or stalking, controlling or coercive behaviour, disclosing private sexual images without consent, a sexual offence, blackmail or another offence.
3. Communications which may amount to a breach of a court order or a statutory prohibition. This can include juror misconduct offences, contempt of court, breaches of a restraining order or breaches of bail.
4. Communications which do not fall into any of the categories, which will be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false.
The guidance makes clear that provided the evidential threshold is met, it will usually be in the public interest to prosecute social media communications that fall into categories 1–3 above. However, communications that fall into category 4 will be subject to a high evidential threshold and the guidelines also state that "in many cases prosecution [of these types of communications] is unlikely to be in the public interest".
Employers will not be particularly surprised to see that social communication which falls into categories 1–3 will probably result in prosecution. In relation to category 4 (grossly offensive, indecent, obscene or false) communications, the position is less straightforward.
To warrant prosecution as a category 4 communication, the guidelines state that it must be "more than"
CPS prosecutors must then be satisfied that prosecution is in the public interest (including whether there is a hate crime aspect to the communication or a coordinated "virtual mobbing" campaign) and that the prosecution would not be a breach of overriding human rights considerations of freedom of expression.
The guidelines acknowledge the importance of context, and that interactive social media dialogue takes places in a "quite different" setting to other communications. Instantaneous exchanges, banter, jokes and offensive comments are commonplace and expected. The guidelines also indicate that the purpose or intent of a communication is key, and that encouraging others to commit an offence – for example, a call for others to tweet or re-tweet a grossly offensive message – may also merit prosecution.
Employment considerations of course differ from CPS prosecution aims and objectives. What an employer may legitimately consider inappropriate or evidence of misconduct will often diverge from what the CPS deems worthy of prosecution. Employers are entitled to make findings based on the balance of probabilities rather than the criminal standard of "beyond reasonable doubt".
The new guidelines are useful to employers in identifying and acting upon reports or complaints about social media communications made by employees: both in relation to whether a particular employee may have committed a criminal offence; and in taking whatever internal action is necessary to protect the organisation, whether or not the police or CPS have become involved.
Aside from noting that a social media communication may inadvertently reach millions (by "going viral"), the new guidelines do not address the implications this has for the severity of a potential offence in any detail. But employers will be mindful that the more widely a communication has been shared, the greater the risk it will pose to the organisation.
More generally, however, the guidelines illustrate the breadth of considerations that monitoring and potentially curtailing social media use involves. Deciding, for example, whether an exchange of WhatsApp messages between work colleagues, or an endorsement of an offensive joke or controversial political opinion on Facebook, went beyond the acceptable boundaries of social media interaction will inevitably require a balancing of competing considerations of offensiveness, harm and freedom of expression.
In this respect the new guidelines confirm that, for employers, a robust acceptable use policy and a consistent approach to instances of unacceptable behaviour remain the best tools for policing social media.