Hundreds of millions of messages and posts are sent everyday on sites such as Facebook, Twitter, Instagram and YouTube. Many are considered offensive but do they amount to a criminal offence?
Some posts may be upsetting or distasteful or express an unpopular view but are not necessarily criminal.
There is no intention to criminalise messages or posts that could be deemed satirical, iconoclastic, rude, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it.
Others may be grossly offensive, indecent, obscene or of menacing character and therefore could well meet the threshold for a prosecution.
Others may be part of a campaign of abuse or credible threats of violence against an individual or group of people, which likewise may well lead to a prosecution.
Please note: this guidance is not intended to stipulate exactly what police can or will do in individual cases. It is offered as advice on what social media users can do themselves and a guide to what prosecutors can do in general.
When is offensive content criminal?
A previous Director of Public Prosecutions for England and Wales stated:
“These are cases that can give rise to complex issues, but to avoid the potential chilling effect that might arise from high numbers of prosecutions in cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it.”
In all cases, the States of Jersey Police and Law Officers Department will consider the full context of the communication and the public interest test.
If you are not sure if a message is criminal, you can contact us on 612612 or via any of our social media portals and an officer will be able to advise.
What can the police do about it?
If we consider a message or post to be potentially criminal, we will take appropriate action. This could involve arrest and bringing a prosecution, especially in those cases involving a sustained campaign of harassment or abuse or where someone's life is threatened.
In cases where offence is caused, we will look at the whole picture and speak with the Law Officers to determine whether a prosecution is proportionate.
The factors police and prosecutors will consider include: whether it is in the public interest to pursue the case, how vulnerable is the victim and what resources are required to trace the offender via social networking sites that often operate abroad and to different legislation.
If it is not proportionate, for example, if the person posting the offensive message was genuinely unaware of the effect of their actions and the victim was not distressed by the content, we can use a community resolution.
These are common-sense approaches to such problems where we work with the victim to agree an appropriate outcome, which could include, for example, an apology.
I have seen something on a social media site that offends me...
There will be times when something is said that is considered so grossly offensive, indecent, obscene or menacing in character that it may constitute a criminal offence. Always keep a record of the content, by taking a screenshot, for example.
However, there is also much content on social media that is offensive or upsetting but which is not necessarily a criminal offence.
All good social media sites have facilities which anyone can use to report such content and we encourage you to familiarise yourself with how these work.
If you are thinking of replying to a message or post, consider what you say and what effect you will have.
For example:
If the answer to any of these is ‘yes,’ it may not be worth responding.
In the first instance, report the offensive messages/account to the social media platform it is on (eg - notify Facebook or Twitter). The next thing to do is to report it officially to the States of Jersey Police. We can then look into it to see if action needs to be taken.
I’m offended by regular messages or posts about me...
If you are receiving regular offensive or abusive messages on social media or elsewhere, this could be a form of stalking or harassment.
Keep a record of the messages and as much information as you can about who sent them and when.
Call police on 612612 or 999 if it is an emergency.
I am genuinely concerned that someone has sent a message threatening violence...
Credible threats of violence to someone's life or property expressed via social media can amount to a criminal offence and could be prosecuted.
As above, keep a record of the message or post and as much information as you can about who sent it and when.
Call police on 612612 or 999 if it is an emergency.
Someone is being racist, homophobic, or offensive about people with a disability, for example...
Any form of abuse, threat or intimidation, which targets an individual or group because of who they are, is a hate incident or hate crime.
These are incidents or offences, which are motivated by hostility, prejudice, or hatred towards someone's actual or perceived: colour of skin, race, ethnicity, nationality and/or national origin, disability, sexual orientation, faith, religion or belief, gender or gender identity, age.
As above, keep a record of the message or post and as much information as you can about who sent it and when.
Call police on 612612 or 999 if it is an emergency.
Useful Links:
Crime (Disorderly Conduct & Harassment) (Jersey) Law 2008 - https://www.jerseylaw.je/laws/revised/Pages/08.115.aspx#_Toc469409528
Telecommunications (Jersey) Law 2002 - https://www.jerseylaw.je/laws/revised/Pages/06.288.aspx#_Toc503540397
Crown Prosecution Service Social Media Guide* - https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media
*Note that this guidance applies to laws that apply within England and Wales and not Jersey and is for general advice and guidance only.
