Social media prosecution guidelines set out by Crown Office

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Image caption The guidelines warn that if it would be illegal in the street it is illegal online

Prosecutors have set out new guidelines on whether messages posted on social media should be treated as a crime.

Lord Advocate Frank Mulholland said the test was simple: "If it would be illegal to say it on the street, it is illegal to say it online."

The Crown Office said it would not pursue satirical or mildly offensive humour or provocative statements.

But it promised a "robust" response to hate crime, stalking or credible threats of violence

The Crown Office and Procurator Fiscal Service has previously sought clarity on where the legal boundary lies in such matters.

The guidelines state that communications should be considered for prosecution if they:

  • specifically target an individual or group and are considered to be hate crime, domestic abuse, or stalking
  • constitute credible threats of violence to the person, damage to property or to incite public disorder
  • may amount to a breach of a court order or contravene legislation making it a criminal offence to release or publish information relating to proceedings
  • do not fall into the above categories but are nonetheless considered to be grossly offensive, indecent or obscene or involve the communication of false information about an individual or group which results in adverse consequences

The Lord Advocate said the aim was not to deny freedom of speech, but the law would target internet trolls posting sectarian, homophobic or violent messages or pictures.

In an interview with the BBC's Good Morning Scotland programme, the Lord Advocate was asked how "grossly offensive" could be defined when it could be seen as relative.

He replied: "The guidance sets out that it would not include, for example, humour, satirical comment, which is part of the democratic debate, so there's guidance to prosecutors as to what's not included.

"It doesn't include offensive comment because we recognise that, in a democratic society, with use of social media you can have offensive comment which wouldn't be criminal but it's really the category above the high bar grossly offensive which has a significant effect on the recipient of the comment.

"We've all seen on the media reports of what you described, internet trolls, where this kind of comment, grossly offensive comment, is sent out to directly wound and has quite a significant effect."

He added: "There's very detailed guidance of all the factors that prosecutors will take into account when they assess whether or not to raise criminal proceedings in relation to grossly offensive comments posted on social media."

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