Crown Office creates guidelines for illegal social media posts

11, December 2014: New guidelines have been created by prosecutors to determine which messages posted on social media can be considered criminal.

According to Lord Advocate Frank Mulholland, what would be illegal to say on the streets would be illegal to say online. This means individuals who post social media messages that fall in pre-determined categories can now be prosecuted under the law.

Humorous, mildly offensive or provocative statements would not be pursued but strong action would be taken against hate crime, violent threats or stalking.

The Procurator Fiscal office and the Crown Office had earlier sought clarification on the legal boundaries regarding these matters.

The new guidelines declare communications may be prosecuted under the following conditions:

• Targets individuals or groups and qualify as hate crime, domestic abuse or stalking;

• Credible threats against persons, incites public disorder or damage to property

• Breaches a court order or contravenes laws which make publication of information regarding legal proceedings to be illegal

• Grossly offensive, indecent or obscene communications or spreading of false information about individuals or groups that have adverse consequences

The Lord Advocate clarifies that this new move does not aim to curtail freedom of speech but targets internet trolling with graphic, homophobic or violent messages and pictures.

During a BBC interview on Good Morning Scotland, the Lord Advocate was asked whether it was possible to define “grossly offensive” when it seems rather relative, to which he stated that the guidelines provide guidance to prosecutors since satirical comments, for instance on a democratic debate, do not fall in this category.

The Lord Advocate also said that the law recognizes social media use as part of a democratic society where certain offensive comments would not be criminal but that grossly offensive comments that are in the high bar would have significant effects on people receiving such messages or comments.

There have been media reports describing internet trolls who have posted grossly offensive comments send directly to wound targeted individuals with tremendous effects.

He also clarified that detailed guidance on all the factors that prosecutors would consider when assessing criminality of social media messages were available regarding the definition of “grossly offensive” posts.

It is hoped that with the new guidelines, more responsible social media use would ensue and that internet trolling, particularly falling under hate crime, domestic violence or abuse, and inciting of public disorder, would be highly discouraged.

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