Facebook and Twitter sentences: Are judges out of touch with social media?

Leading lawyers are drawing up new guidance aimed at making social media sentencing more consistent

A 12-week prison sentence given to a man who posted offensive comments on Facebook about missing April Jones and Madeleine McCann has been criticised by legal commentators as disproportionate. But are judges and magistrates out of touch when it comes to social media?

On 8 October the Facebook comments landed Matthew Woods, 20, of Chorley, Lancashire, with the longest sentence magistrates could pass - less a third to give credit for an early guilty plea.

Over the Pennines a day later, Azhar Ahmed, also 20, of Ravensthorpe, West Yorkshire, was fined £300 and ordered to do 240 hours of community service for posting an offensive Facebook message following the deaths of six British soldiers.

Both were prosecuted under the Communications Act 2003.

While Ahmed was receiving his sentence, director of public prosecutions Keir Starmer QC was in one of a series of meetings he is holding with journalists and legal experts to get their views on his planned guidelines on interpreting the act.

Under section 127, it is an offence to send electronic messages, including on social media websites, that are "grossly offensive or of an indecent, obscene or menacing character".

His new rules aim to bring more consistency to sentencing.

'Boundaries of free speech'

Mr Starmer - the most senior prosecutor in England and Wales - announced his plan to issue the guidelines last month. It followed the release without charge of Port Talbot Town footballer Daniel Thomas, who had been arrested for tweeting a homophobic message about Team GB divers Tom Daley and Peter Waterfield.

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

But he said it was not "so grossly offensive that criminal charges should be brought".

Mr Starmer, who aims to publish draft guidelines next month, added: "In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media."

Points up for discussion in his series of round table meetings include striking the balance between free speech and the application of criminal law; whether police should try to protect people from what some would consider bad taste; and how reposting, or retweeting, comments should be considered in law.

BBC technology correspondent Rory Cellan-Jones said celebrities, sports stars and school children alike were finding that mistakes made using the likes of Facebook and Twitter could spin out of control very rapidly.

Keir Starmer has called for a debate 'on the boundaries of free speech in the age of social media'.

The courts, the police and other authorities were grappling with the question of how they should handle offensive behaviour on these new platforms, he said.

Mr Starmer's round table meetings were a measure of the puzzlement of the authorities.

The big question was should something you say on Facebook be treated more seriously than something you shout across a crowded pub, our correspondent added.

David Allen Green, head of media at business law firm Preiskel & Co, is opposed to custodial sentences for posting offensive messages.

"A custodial sentence for some comment deemed grossly offensive can be itself grossly offensive - that is not what prisons are for," he told the BBC News website.

"It may well be that a message on Facebook could be more offensive than an insult in a street, but it is hard to understand how the former gets a 12-week custodial sentence and the other just a fine."

'Silly joke'

Mr Green, who was solicitor for Paul Chambers in the "Twitter joke trial", believes that "the police and the criminal justice system more widely still do not understand enough about social media, and because of this resources are being wasted and bad decisions being made".

In July, Mr Chambers - who was found guilty in May 2010 of sending "a menacing electronic communication" threatening to blow up an airport - had his conviction overturned at the High Court.

Mr Chambers, who had been fined £385 and ordered to pay £600 costs, had maintained throughout that a tweet that he would blow up Robin Hood Airport, in south Yorkshire, because it was closed after heavy snow had been "a silly joke".

On Tuesday, Mr Chambers wrote on Twitter: "Two extremely bad days for freedom of speech with #AzharAhmed and Woods. Glad all that fighting wasn't for nothing :/"

Social media, in Mr Starmer's description, "is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors, but also by others including the police, the courts and service providers".

But while some opponents of tough sentencing over offensive remarks suggest it sometimes comes as a result of lack of understanding, magistrates and judges have been unequivocal in their judgements.

Sentencing April Jones tweeter Matthew Woods on Monday to 12 weeks in prison, Chorley Magistrates' Court bench chairman Bill Hudson told him: "The words and references used to the current case in Wales and that of the missing girl in Portugal are nothing less than shocking, so much so that no right thinking person in society should have communicated to them such fear and distress.

"The reason for the sentence is the seriousness of the offence, the public outrage that has been caused - and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive."