The law of Twitter: Legal guidelines coming on free speech

Full guidance on how authorities should treat offensive comments on Twitter is on the way, after the director of public prosecutors gave up on the current system.

The news comes as Keir Starmer announced he would not be pursuing a prosecution against Daniel Thomas, a semi-professional footballer who made a homophobic comment about Olympic divers Tom Daley and Peter Waterfield.

"There is no doubt that the message posted by Mr Thomas was offensive and would be regarded as such by reasonable members of society," Starmer said.

"But the question for the CPS [Crown Prosecution Service] is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made."

Starmer said that criminal charges were suitable where there were examples of harassment; where court orders were flouted; or where "grossly offensive" or "threatening" comments were made – but that the free speech threshold must be set very high.

The director of public prosecutions therefore promised new guidance on Twitter specifically to guide police and prosecutors on what might step over the boundaries.

Explaining why Twitter was such a complex website when it came to legal judgements, Starmer said: "It is estimated that on Twitter alone there are 340 million messages sent daily. And the context in which this interactive social media dialogue takes place is quite different to the context in which other communications take place.

"Access to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions."

Starmer's explanation of why Thomas did not have to undergo a criminal trial hints at what the guidance he may eventually draw up.

The director of public prosecutions highlighted the fact that Thomas "intended the message to be humorous", did not intend it to go beyond his followers – "who were mainly family and friends" – and then took "reasonably swift action" to delete it.

He also cited how Thomas had expressed remorse and was temporarily suspended from his football club, as well as the fact the two divers did not even read the message until they saw it in the press.

Starmer's reasoning suggests a desire to distinguish between offensive 'banter' and harassment.  It also appears Twitter users who have wide-ranging follower networks of strangers will be treated differently to those with a small group of family and friends following them.

The fact Starmer mentions Thomas' deletion of the message indicated that – as in a libel case – moves to delete and apologise for messages after they are posted will be recognised by prosecutors.

Labour suggested the new guidelines were a result of concerns over the Twitter joke trial, in which a man was prosecuted or jokingly threatening to blow up an airport – a decision Starmer supported.

"Social media users are not above the law, but the Crown Prosecution Service must exercise its discretion to prosecute with common sense and proportionality," commented Emily Thornberry, shadow attorney general

"The announcement is a tacit admission from the DPP that Paul Chambers, the defendant in the Twitter joke trial, was dragged through the courts for nothing. In that case the law and its enforcers were made to look an ass."

The Crown Prosecution Service (CPS) will draw up guidelines before a public consultation and roundtable discussions with campaigners, media lawyers, academics, social media experts and law enforcement bodies.

The news came as Greater Manchester police arrested a man in connection with an "offensive" Facebook page set up after deaths of two police officers earlier this week.