Social media guidelines: Nice start, but still a long way to go

19 Dec 12 | Uncategorized

Keir Starmer’s social media interim guidelines appear sensible enough, which is more than can be said for the controversial cases that led to the Director of Public Prosecutions’ consultation.

Index took part in that consultation back in October. I wrote at the time Starmer was adamant that the ruling in the Paul Chambers appeal (which overturned his 2010 conviction for jokingly tweeting that he would blow an airport “sky high”) was not to be seen as any sort of precedent. Yet in the guidelines published today, Starmer cites the two passages in that ruling that seemed to provide most protection for free speech, which noted:

…a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a) of the Communications Act 2003], for the simple reason that the message lacks menace.

And:

Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127].

So it would seem there’s been a slight change of mind, which is entirely reasonable and welcome (though on Twitter Chambers’ partner Sarah Tonner seems a little annoyed by this apparent switch).

Apart from that, what else have we got to discuss in these interim guidelines? Well, there’s a slight shift away from the use of the controversial section 127 of the Communications Act. At the consultation I attended, the various representatives, from diverse groups including anti-bullying and anti-harassment bodies, were keen to stress that section 127 was not appropriate for social media, and that it would be better to focus on patterns of harassment, abuse etc, and prosecute, if necessary, under anti-harassment laws such as the Protection from Harassment Act 1997. This is welcome – too often we focus on the medium rather than the behaviour.

More generally, there’s much on high thresholds on prosecution, and clear identification of public interest, perhaps not evident in the prosecutions of people such as Liam Stacey (sentenced to 56 days in prison for a “racially aggravated public order offence” after tweeting a poor taste joke about footballer Fabrice Muamba).

There is not much on the difference between “merely offensive”, which may not merit a prosecution, and “grossly offensive”, which could. As so often, this comes down to the probable perception of a right-thinking person. As in definitions of “obscenity” it seems a case of “I know it when I see it”.

There is a worry in the suggestion that removal of offensive posts by ISPs may provide a defence against prosecution.

While Facebook, Twitter et al will sometimes remove posts off their own bat, there is no absolute uniform system, and due to the sheer volume of traffic on social networks every day, some posts will slip through and others will be removed prematurely or inappropriately. Furthermore, this contains the germ of a suggestion of third-party liability, in which ISPs are held responsible for content. It will be crucial to examine this in the three-month public consultation on the guidelines which open today. It will also be worth examining whether section 127 of the Communications Act is appropriate at all in social media cases.

A decent start then, but more to be done.

Padraig Reidy is news editor at Index. Follow him on Twitter: @mepadraigreidy

More on this story:
Read the guidelines in full here
Graham Linehan on the Twitter Joke Trial
Paul Sinha on a tale of two tweets
Do western democracies protect free speech?

Has Lord McAlpine been the victim of a crime?

21 Nov 12 | Uncategorized

The Guardian is reporting that lawyers for Lord McAlpine, who was horrendously slandered as a paedophile after a Newsnight report alluded to a “senior Conservative” involvement in a child sex scandal, are looking into the possibility of criminal prosecutions of Twitter users who wrongly identified him.

There is no doubt that accusations of child sexual abuse are very serious. If you asked people on the street to come up with an example of a libellous accusation, chances are most would say “calling someone a paedophile”.

McAlpine has clearly been defamed, and is entitled to seek reparation.

But the McAlpine legal team are apparently investigating pursuing the case(s) under the Malicious Communications Act 1988.

Here’s the relevant text of that act, worth reproducing in full

(1) Any person who sends to another person—
(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature, is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

(2)A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—
(a)that the threat was used to reinforce a demand [made by him on reasonable grounds]; and
(b)that he believed [and had reasonable grounds for believing,] that the use of the threat was a proper means of reinforcing the demand.

(2A)In this section “electronic communication” includes—
(a)any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12)); and
(b) any communication (however sent) that is in electronic form.]

(3) In this section references to sending include references to delivering [or transmitting] and to causing to be sent [delivered or transmitted] and “sender” shall be construed accordingly.

(4) A person guilty of an offence under this section shall be liable on summary conviction to [imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both].

There are two pertinent issues raised here: what is “sending” a communication, and the intent of the message.

As social media such as Paul Chambers have learned to their cost, the legal definition of sending a message online seems to differ from most users’ understanding. A phonecall, text or email would suggest “sending” to most people, but we wouldn’t necessarily consider a tweet or a Facebook update as the same thing. The definition has evolved far beyond the original purpose of laws on communications, which were intended to protect people from harassment by, say, heavy breathers, or hate-mailers.

Secondly there is the issue of intent. It seems unlikely that people who tweeted alluding to false rumours about McAlpine intended to cause “cause distress or anxiety to the recipient”.

Additionally. “the recipient” is an interesting concept here: when we tweet, who exactly is the “recipient”. If we send a direct message, or include someone’s handle in a tweet, then we can identify a “recipient”, but what of a straightforward tweet, is the “recipient” so clear?

Much has been written on this blog about the use of inappropriate legislation in social media prosecutions. This would appear to be another case.

There are (very problematic) civil laws on libel, and there are criminal laws on harassment. While not downplaying McAlpine’s ordeal, we must be vigilant against the increasing criminalisation of online speech.