The director of public prosecutions has warned that millions of offences citing section 127 of the 2003 Communications Act* could end up in court if cops handing out charges fail to approach such cases in a measured way.
Keir Starmer, who was talking at an Internet Service Provider Association (ISPA) conference in London on Monday, said that there was no time given for police forces to "review and reflect" upon arrests such as the one involving a young man from Aylesham, near Canterbury in Kent. The suspect in question is claimed to have burned a Remembrance Day poppy and then posted the image of it - along with an allegedly "grossly offensive" message - on Facebook last Sunday.
The DPP said that part of the problem with the current legislation was that police officers could cite, for example, section 127 of the Comms Act during a cuffing without having to refer such cases to the Crown Prosecution Service.
He went on to make a leap of logic by suggesting that the end result could lead to millions of trolling offences being prosecuted in courts across the country.
Starmer put his comment into context by explaining that at present, around 100,000 cases were prosecuted in Magistrates' courts each year and about 900,000 cases were prosecuted in the Crown courts. He then bundled in global statistics: there are 340 million tweets being sent each day and 1 billion users have now signed up to Facebook.
The DPP said: "If only a small percentage [of such online posts deemed to be offensive] end up the wrong side of criminal law, millions of cases could potentially be put into our system, more cases than the combined number of every other offence on the statute book."
In the past year, there has arguably been an explosion of cases involving internet trolls who have allegedly posted malicious comments on websites such as Facebook and Twitter, which have then been reported as causing offence by other users of such social media.
The end result has led to arrests that mainly cite section 127 of the 2003 Communications Act.
It was revealed in Parliament last week that principal offences relating to that provision had begun to climb over the past few years. In 2007, there were a total of 498 defendants found guilty under section 127 in England and Wales, compared with 693 in 2008, 873 in 2009, 1,186 in 2010 and 1,286 in 2011.
Hardly in its millions yet, then.
The figures for this year are yet to published but it's highly likely that the numbers will have leapt up again, especially given the level of coverage internet trolling has received from national and local press in the past 12 months.
Starmer, who said he was "not an advocate" of the provision, wants to make the law work, which is in part why the DPP is set to release interim guidelines in the next few weeks about the general approach he thinks needs to be taken to prevent the "chill effect" of all such cases being prosecuted.
Among other things, he indicated that advice would include considering whether the alleged offence received a bad reaction from a large audience of people online. The DPP added that it was important to measure the intention of such posts.
He also argued that the meaning of "grossly offensive" in part one of section 127 needed to be clarified. A public consultation process will be opened up while the guidelines are at an interim stage, Starmer said.
Meanwhile, the 19-year-old suspect who was arrested by Kent police on Sunday after posting the picture of a burning poppy on Facebook was released on bail yesterday. In that case, the young man was in fact cuffed under the less-used Malicious Communications Act 1988. ®
* The section covers the sending of "improper messages". Section 127(1)(a) relates to a message that is "grossly offensive", indecent, obscene or menacing character and can be used for indecent phone calls and emails. Section 127(2) targets false messages and persistent misuse intended to cause annoyance, inconvenience or needless anxiety.