Can I Be Prosecuted for a Public Order Offence on Social Media?

Can Social Media Posts Lead to a Public Order Prosecution?

Social media posts can and do lead to criminal prosecution in England and Wales. Many users assume that posting online is safer or more anonymous than speaking in a public place, but convictions arising from online activity show that assumption is wrong.

Several laws may apply, including the Public Order Act 1986, the Crime and Disorder Act 1998, the Communications Act 2003 and the Online Safety Act 2023. The Malicious Communications Act 1988 also remains relevant to certain offences.

Which law applies depends on what was posted, the intention behind it and the surrounding circumstances.

Traditional public order offences often concern threatening or abusive behaviour in public or situations involving people nearby. However, prosecutors may use communications legislation where the alleged conduct involves an online message rather than a face-to-face encounter.

Online posts can also lead to prosecution under public order legislation where they involve stirring up hatred.

For example, following the disorder in summer 2024, a man was convicted after posting Facebook messages encouraging an attack on a hotel housing asylum seekers in Leeds.

He did not need to attend the location for his online conduct to become the subject of criminal proceedings.

The important distinction is that offensive expression is not automatically criminal, but certain threats and material intended to stir up hatred can meet the requirements for prosecution.

Public Order and Communications Offences: The Difference

Public order and communications offences cover different types of conduct. They also have different legal requirements, potential defences and penalties.

Public order legislation addresses conduct such as threatening or abusive words and behaviour, including offences involving the stirring up of hatred.

Communications legislation focuses on messages sent or shared through electronic networks and other forms of communication.

Under the Communications Act 2003, sending a message through a public electronic communications network can be an offence where the message is grossly offensive, indecent, obscene or menacing, and the relevant legal requirements are met.

The Online Safety Act 2023 introduced further communications offences on 31 January 2024, including offences involving false communications and threats of death or serious harm.

These offences have specific requirements. For example, the false communications offence requires proof that the sender knew the information was false and intended to cause non-trivial psychological or physical harm, without reasonable excuse.

The Malicious Communications Act 1988 also remains in force for certain grossly offensive or indecent communications, although some of its former provisions were replaced by the Online Safety Act 2023.

A person may therefore be investigated under one area of law but ultimately charged under another, depending on the evidence.

When Posts May Cross the Legal Line

Freedom of expression is protected under Article 10 of the European Convention on Human Rights. This includes the right to express opinions that others may find offensive or upsetting.

However, the right is not absolute. Restrictions may be justified where they are lawful, necessary and proportionate.

Prosecutors apply a two-stage test: first, whether the communication is capable of being grossly offensive, menacing, or otherwise prohibited; and second, whether a prosecution is required in the public interest. 

A post that clears the first stage may still not lead to charges if the public interest test is not met.

Wording is assessed by its ordinary meaning and by its likely effect on the audience. A stated intention to be humorous, satirical, or provocative is a relevant factor, but it does not automatically determine the outcome.

For example, a message that a reasonable person would find grossly offensive, or that communicates a genuine threat, carries legal risk regardless of what the author says they intended.

Intent requirements vary depending on which offence is charged. Some offences require proof that the sender intended to cause distress, fear, or hatred. Others require only that the communication was sent and that it satisfies the relevant standard, assessed by its effect on a reasonable person. 

Context also affects how a post is assessed. Content that might appear to be dark humour within a specific online community may be read as a genuine threat when taken out of that context. 

Content directed at a specific person or identifiable group, or content that calls for action against a named location or identifiable individuals, carries greater legal risk than general political comment. 

The Public Order Act 1986 also contains offences involving the stirring up of racial, religious and sexual orientation hatred. The wording and intention requirements differ between those offences.

A solicitor can assess whether the content and surrounding evidence meet the requirements of the alleged offence.

Sharing, Reposting and Commenting

You do not need to create the original post to face investigation. Sharing or reposting someone else’s content can engage the same public order or communications offences as the original.

However, sharing a post is not automatically the same as endorsing it.

Investigators may consider why the material was shared, whether additional comments were made and how the repost affected its circulation.

Commenting on a post in a way that amplifies, approves, or adds to threatening or offensive content may also attract scrutiny.

During the 2024 public disorder, prosecutions included cases involving both original messages and material shared in Facebook groups.

The fact that someone else created the content did not necessarily prevent the person who distributed it from being investigated.

However, the prosecution must still establish the elements of the offence alleged against the individual.

Social media platforms retain data and can disclose it to police when required. Shares, likes, and comment histories may be recoverable even if a post appears to have been deleted. 

Police and prosecutors may already hold copies of relevant content before any contact is made with the account holder.

Private Groups, Anonymous Accounts and Context

Posting in a private Facebook group or WhatsApp conversation does not automatically protect someone from prosecution.

For offences under the Communications Act 2003, the relevant question is whether the message was sent through a public electronic communications network.

A closed group on a publicly accessible platform does not place the communication outside the legal framework simply because the conversation is not open to everyone.

The size and nature of the audience within a private group may be relevant to assessing whether particular content meets the standard required for a given offence. Context, including who the audience is and how the platform is used, can affect how a post is understood. 

Anonymous accounts do not prevent prosecution. Platform providers can disclose account data to police when presented with a valid legal process. 

IP address records, device data, and digital forensic analysis can be used to identify account holders. The belief that an anonymous username protects against investigation is a false assumption.

Freedom of expression arguments, including arguments that content was clearly satirical or that the platform context makes its meaning obvious, may be raised and are genuinely considered. But context arguments work within the legal framework rather than bypassing it.

What to Do if the Police Contact You

If police contact you about a social media post, obtain legal advice before answering substantive questions.

This applies whether the contact is a voluntary request for an interview, a visit to your home, or any other approach. 

A voluntary interview is conducted under caution, which means answers can be used in evidence. Attending or responding without legal advice can significantly affect the outcome of an investigation.

Preserve all relevant posts, threads, messages, and screenshots. Do not delete posts, edit content, or close accounts. Deleting material that may be relevant to a police investigation can itself create legal difficulties. 

Police and prosecutors may already hold copies of the relevant content through platform disclosure or digital forensic means, so deletion may not remove the evidence from the investigation.

Do not contact others who may be involved in the same posts or threads to discuss what happened or align accounts. Communications of that kind can create additional legal exposure and may be used as evidence.

A solicitor can review what has been posted, explain which public order or communications laws may be relevant, advise on what to say or not say in any interview, and engage with police and prosecutors on your behalf from an early stage. 

Speak to a Solicitor About a Social Media Investigation

If you have been contacted by police about a social media post, or are concerned that something you shared may lead to an investigation, legal advice can help you understand your position.

A criminal defence solicitor can review the content, assess the relevant law and advise on any police interview or potential prosecution.

Our Criminal Defence solicitor can explain your options and help you respond to allegations involving public order or communications offences.