Public Communications Networks and Menacing Messages

This morning Paul Chambers won his #TwitterJokeTrial appeal and was acquitted of sending a menacing tweet under the communications act 2003. Paul had been found guilty of sending by a public electronic communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003. The tweet in question read as follows:

“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!!”

For those who haven’t been following the case, Paul’s solicitor, David Allen Green, has written the background for New Statesman.

The High Court overturned the conviction on the basis that the tweet was not menacing, however the judge found that twitter IS a public communications network and is therefore subject to the communications act 2003. While I celebrate the decision of the court I disagree in part with their reasoning.

A key part of the original defence was that Twitter was not a public communications network, because a tweet read outside of the context of being a follower of the tweeter is content rather than a message.  I think this point was perhaps misunderstood by all sides. I would not argue that Twitter is not a public communications network, but that Twitter is both a public communications network and something more. Tweets that are not aimed at any one individual are a different usage which requires different treatment to that specified in the Communications Act 2003 and the original 1935 act that it was based on.

Paragraph 25 of the judgement says:

25. In our judgment, whether one reads the “tweet” at a time when it was read as “content” rather than “message”, at the time when it was posted it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1). Accordingly “Twitter” falls within its ambit.

A tweet addressed to to one or more people with an @ mention is a message to those people. However, a tweet which is not addressed to anyone can be expected to be read by some or all followers of the person who makes the tweet. In general it would not be seen by those outside of this group unless either the tweet is “retweeted” – copied to the followers of one of the readers – or someone has searched through twitter for key words like “Robin Hood Airport” as happened in this case. The outsider had to make an effort to find it through search or by looking at the person’s profile. This is more like speaking in a group in a pub – what you say is meant for the group but others could stand nearby and listen too.

I believe that it is important that the difference in context between these types of tweets should be understood by the legal system. People frequently make jokey threats and statements, but there is a vast difference between making such a comment in the context of a group, and in aiming said comment as a message at the person or organisation who is the subject of those threats. Had Paul Chambers tweeted his statement directly to Robin Hood Airport then it would clearly have been a threat, but he did not do that. Instead he tweeted it to his followers who presumably would laugh or commiserate or both.

As to why it is important that people can joke around with ideas like bomb threats and suchlike, these tweets from Edwina Currie are a good demonstration. If Paul Chambers’ conviction had been upheld then Currie would be guilty of the same offence.

https://twitter.com/Edwina_Currie/status/218437050255413248

https://twitter.com/Edwina_Currie/status/215860912253440003

For now the important thing to note from the case is that as of this ruling, anything that you type on social networks will be subject to the Communications Act 2003 and anything considered menacing could be a criminal offence.

Further Reading

The appeal judgement in full [PDF]

Twitter joke trial: Paul Chambers wins high court challenge to conviction [Guardian]

Edwina Currie’s Comedy Connections [Storify]

“If you don’t like it, go somewhere else.”

“If you don’t like it, go somewhere else.”

This response to an argument is far too common. I’ve seen recently it when complaining about the monarchy and the Olympics, as well as on lots of other occasions. However, that phrase is loaded with assumptions, privilege and intolerance.

I object to the monarchy. I don’t want the head of state to be a hereditary position – they should be democratically elected to represent the people. The head of state is meant to act as a control to keep the government in check. The queen theoretically has the power to veto legislation, to select the prime minister, and a few other things but she cannot do so because it would be politically impossible. Therefore the queen is useless as head of state and is basically only good for ceremony. I think it is wrong to define royalty as somehow better than everyone else and to call people subjects instead of free citizens. I certainly hate the celebration of the jubilee, all deference and nationalistic flag-waving and spending millions on extravagance at a time when the cost of even food and shelter is being denied to so many because of austerity.

The reason that I have presented this argument, however, is that you don’t have to agree with the views I have just expressed. We have basic human rights which are stated within the European Convention on Human Rights as a right to freedom of expression (Article 10) and a right to freedom of thought, conscience and religion. (Article 9.) In a democracy people may vote to select a representative or a policy based on the views that they hold. Unfortunately I can’t vote to abolish the monarchy because MPs have sworn loyalty to the queen and cannot introduce such legislation. I can, however, express my dislike for this situation.

There are many injustices that I would like to fight and the monarchy is a long way down the list. The jubilee has made it rather hard to ignore recently though, and when people express their dislike of the queen a very common response is to be told to live somewhere else. The problem is, I can’t, and I shouldn’t have to anyway.

I am chronically sick. Physically and mentally I would find it extremely difficult to cope with moving house across borders although there are ways around that if I had money. If I moved I would be separated from my support network and would require even more state support. My illness forces me to rely on income from benefits because I am unable to work and as a result it’s not just a case of paying to renew my passport and buy a ticket to another country; once there I need food, shelter, clothing, medicine and all the other things necessary to live. Unfortunately we live in a world of closed borders, of xenophobic people and of language barriers. It is hard enough to move to another country to work, but next to impossible to move to another country to live on welfare. (For what it’s worth, I once left the UK for six months, but was forced to return to find work.)

Even if I could leave, though, why should I have to? This is the place of my birth, the place where people share the same language and cultural references. This is where my family and friends are. I do not forfeit the right to those connections just because I dislike the government and the monarchy, and I certainly do not forfeit the right to complain about those things just because I am too sick to work. (See: Ungrateful.)

Freedom of expression and of thought means that we have to share with people who hold views that we don’t like. We can oppose those views, we can express our opposition, and sometimes views run over into threats which the law addresses, but we must not demand that people leave just because we disagree with them.

 

Free speech isn’t just for you

Jeremy Clarkson has upset people. Nothing new there. Commenting on the strikes on November the 30th, he said:

“I would have them all shot. I would take them outside and execute them in front of their families. I mean how dare they go on strike when they have these gilt-edged pensions that are going to be guaranteed, while the rest of us have to work for a living.”

Later (not in the clip below) he said: “‘I do sometimes use the train to come to London but it always stops in Reading. It’s always because somebody has jumped in front of it and somebody has burst. You just think, why have we stopped because we’ve hit somebody? What’s the point of stopping? It won’t make them better.”

 

So here’s what I think of what he said. First of all, it is clear to me that the comment about shooting people is not his serious opinion. It is hyperbole. This is just how Clarkson is, he says stupid things that he doesn’t mean to make some people laugh and make other people outraged. To me, it’s not funny, to some unpleasant people, it is. His comment about “gilt-edged pensions” is plain wrong. Public sector pensions are not gilt-edged, gold-plated or any other phrase that implies that they provide enough to live on.

1.11 The Commission firmly rejected the claim that current public service pensions are ‘gold plated.’ The average pension paid to pensioner members is around £7,800 per year, while the median payment is around £5,600.

From Page 26 of the Hutton Report [PDF]

Clarkson is also a hypocrite for calling pensions gilt-edged and claiming that “the rest of us have to work for a living.” I don’t know what his pension is like, but he definitely earns above the average wage – including approximately £1 million per year from the BBC. And I am fairly sure that he doesn’t work as hard as the average teacher, nurse or other public sector worker. As for his comments about people who fall under trains inconveniencing him, that just shows how detached and insensitive he is.

Last week another example of offensive speech made the news. A woman on a tram let out a tirade of racist speech, argument and abuse, and it was all captured on video. That video caused enough outrage to be viewed over 7.5 million times on YouTube. Since that incident the woman has been arrested and charged with racially/religiously aggravated intentional harassment.

Following his comments, Unison said today that they are considering reporting Clarkson to the police for hate speech. What Clarkson said was offensive and vile in my opinion but for all that I disagree with him, I cannot agree with those who say that he should be prosecuted or sued for what he said. I believe that freedom to say what we want is absolutely essential. Article 9 of the European Convention of Human Rights give us the right to freedom of thought, conscience and religion – to think what we want. Article 10 gives us the right to Freedom of Expression – to say what we want. Those are rights. They are not supposed to be negotiable; we must be allowed to think whatever we want and to speak our opinions. People who say things that are popular don’t need those rights enshrined in law because nobody will try to stop them from speaking. It is people who say things that are not popular that need the protection of those rights. And it isn’t just the freedom to say something hurtful or hateful, it is also the freedom to criticise those in power and to protest against government policy. It is very hard if not impossible to clamp down on any expression without providing excuses to clamp down on all expression.

That isn’t to say that there is no way to avoid what people say. We don’t have a right not to be offended by what someone says, but we do have a right not to listen. If offensive comments are left on a private blog or website, I see no reason why they can’t be removed. That’s not censorship, that is refusing to listen. The person who left the comments is free to get their own blog to say what they want. In the case of the woman on the tram, I think if she is found guilty of harassment then that is probably fair – but that is not for what she said but for who she said it to and how she said it. I think it would have been quite reasonable for the driver to ask her to leave the vehicle so that the other passengers did not need to be exposed to what she was saying. In the case of Jeremy Clarkson many people don’t want to hear what he says and don’t want to pay him to say it. I think it is fair for people who pay the BBC license fee to demand that the BBC not pay those fees to Clarkson as a salary for saying offensive things, and quite fair for the BBC to sack him. I don’t think that will happen though. I certainly don’t think that he should be prosecuted for hate speech. I’m also not saying that such offensive speech cannot be opposed. I think it is right to speak out against such opinions and there is nothing to stop other people criticising what was said. It is common for campaigns by the BNP and rallies by the EDL to be opposed by counter-protests by people who feel that they cannot let such political views go unopposed.

Where is the line as to what people can say, then? I agree that there must be a line. I think this because at some point a person using their right to say what they want can cross into abusing other people’s rights. In the case of freedom of speech I do not think that the line should be drawn to prevent offence, but should be drawn at the point where it becomes a threat to other people. I think the charge of harassment for the racist lady on the tram is probably the right charge. I would have disagreed with the charge if it had been hate speech.

This is a difficult problem though. A few months ago Kaliya Franklin (Bendy Girl) had comments left on her YouTube videos that advocated that she be killed because she is disabled. The comments were threatening and a horrible experience for her, and she reported them to the police. I don’t doubt that the comments were a crime under the rules about hate speech. The question is, should they be? I wouldn’t want to allow such comments but at the same time I believe that people should be free to think such things if they are that nasty. I don’t have an answer to this problem.

In the end I think the laws that we have on hate speech are unnecessary. When hate speech becomes threats or harassment it is covered by other laws.

 

Links

My Tram Experience [YouTube]

Jeremy Clarkson: ‘execute’ public sector workers, says BBC Top Gear host [Telegraph]

Sack Jeremy Clarkson over strike comments, Unison urges [BBC]

How rich is controversial Top Gear host Jeremy Clarkson? [This is money]

Mocking Parliament

Quick Version: The Daily Show Global Edition can’t be shown in the UK this week, because it contains footage from parliament in the context of humour and satire. (Long version at New Statesman.)

WHAT????!!!!

We can’t mock parliament? What happened to free speech? You know, that human right that has to apply to everybody or it doesn’t work?

Well screw that. Here’s the stuff that can’t be shown. I am not sure if the rules on this apply to internet video and blogs or not, but if it breaks the law, so be it.

And just in case you haven’t seen it, this is my video that might break the law too.