Careless talk costs

A spate of arrests since 2010 has landed around seven people in court or gaol for sending shocking remarks on the Internet. These “social media trials” have centred on individuals sending “grossly offensive” Tweets or Facebook updates. They have been prosecuted under Section 127a of the Communications Act, and the sentences have left many of us wondering exactly what might land us in trouble with the law: merely for expressing opinions that other people find offensive.

International law is very clear that you have the right to be offensive. The European Court of Human Rights told the UK back in 1976 that you have the right to say things “…that offend, shock or disturb the state or any sector of the population”.

Of course, that is different from intimidating or threatening people with violence or lying about them. There are laws that deal with these kinds of problem. But these cases aren’t like that. People are simply telling jokes or perhaps being stupid on the Internet.

It started with the now famous Twitter Joke Trial. Paul Chambers made a remark about Nottingham Airport, threatening to blow it up because of its poor customer service. He said:

Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!

While nobody in their right mind would take such a threat seriously, somehow it filtered slowly through security and police systems to the point where the man was prosecuted. He appears to have been investigated as if he was a possible terrorist, even though nobody really thought he was: presumably it started as a box ticking exercise, where people charged with maintaining airport security felt they needed to investigate purely because is their responsibility. At some point, law enforcement changed tack, and prosecuted him under Section 127a of the Communications Act, saying his Tweet was “grossly offensive”.

It took several appeals to persuade the courts that he was in fact joking, and should be left alone. Unfortunately, Chambers is just one of many who have recently been arrested under Section 127a. Others have not been so lucky. While Chambers became a cause celebre, and was supported by the likes of Stephen Fry, other people have simply ended up being found guilty and serving sentences.

Part of this is because the remarks people have made are distasteful, and often the timing makes the offensiveness particularly bad. And who wants to defend people making poorly judged remarks? Azar Ahmad, for instance, told his Facebook friends:

“People gassin about the deaths of soldiers! What about the innocent familys who have been brutally killed.. The women who have been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmless familys. All soldiers should DIE & go to HELL! THE LOWLIFE F*****N SCUM! gotta problem go cry at your soliders grave & wish him hell because that where he is going.”

He was sentenced to 240 hours of community service and £300 fine at Huddersfield Magistrates' Court.

Now, while few people would think this is particularly eloquent or helpful, but the number of people who make similarly offensive remarks, either in pubs, on the Internet or elsewhere in public must be quite high.

Also this year, Matthew Woods was given 12 weeks imprisonment in a Young Offender Institution after posting offensive jokes on Facebook about the missing children April Jones and Madeleine McCann. Joshua Cryer received a two-year community order for racist tweets directed at footballer Stan Collymore, and a fake Dale Cregan “fan page” for the accused murderer of police officers Nicola Hughes and Fiona Bone resulted in the arrest an anonymous person in Greater Manchester in September.

This April, the blogger Olly Cromwell called a Bexley councillor a “cunt”, and was sentenced to a 12 month community service order and a 5 year restraining order, preventing him from any contact with his local councillors. Now, I don’t know the details of the case, but restraining orders sound like something that ought to come from some kind of harassment charge, not from a speech offence. When you’re prevented from interacting with your local democratic representatives, that really ought to ring our alarm bells.

The exception to this spate of prosecutions was the case of Daniel Thomas, who posted at homophobic tweet about swimmer Tom Daley, and was initially arrested. The case seems to have helped prompt the Director of the Crown Prosecution Service to review their guidelines about when to prosecute. Their public consultation is making the right noises, but there’s a danger that this is just papering over the cracks. It is not clear that the Communications Act’s power is designed for the Internet and social media at all.

Section 127a dates back to the analogue era, and originally was designed to stop people from abusing “public networks” like telephones or the post to communicate in ways that were beyond acceptable norms, and crucially, that waste public resources. There have been over 4700 prosecutions, but the vast majority of these are not about Internet communications. It carries a maximimum sentence of six months.

Most messages that are “grossly offensive or of an indecent, obscene or menacing character” can be prosecuted under other, more appropriate acts. So the question is, why is section 127(a) being used to police the Internet, and does it even need to exist?

A big reason for the spate of recent Internet prosecutions must lie in the new power of social media, and the visibility and immediacy of the messages. People – and police – may be reading these messages, feeling outraged and then reach for the law book. Section 127(a) seems like a neat catchall, and perhaps is being used where actual harm is difficult to show, so other offences would be difficult to make stick.

That’s bad enough, but courts too seem to be playing along. Courts don’t like laws being broken, and apply the idea that grossly offensive means what a normal person would find grossly offensive. That means that the section can function as a general arbiter of taste and decency, rather than a serious test of criminality. Furthermore, what we find offensive will be very much attuned to new cycles, so anything remarking about a recently controversial topic or one that simply raises indignation could fall foul of Section 127(a). I imagine any teenager with a Jimmy Savile joke right now really ought to keep it to themselves.

There is also, perhaps, a lack of understanding of the difference in context between social media, which may be partially private, and are certainly fleeting glimpses into people’s immediate reactions, rather than considered remarks. People treat them as such, and the law needs to reflect our social attitudes, rather than corralling the population into talking and behaving like the edited mass media.

The danger is that we end up self policing our speech at times when it would be best to speak out. The world would be a pretty boring and oppressive place if we had to think about how the courts might interpret our every thought.

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