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.
21 Sep 12 | Uncategorized
Two years and nine months: that’s the period of time from my arrest for a tweet — the first of its kind at the time in the UK — to yesterday’s statement by the Director of Public Prosecutions (DPP) in relation to a homophobic tweet sent to Tom Daley earlier this year. Having taken the decision not to prosecute Daniel Thomas, Keir Starmer QC has decided this is the time to apply common sense to social media, and to issue guidelines for prosecutors, hopefully to avoid frivolous and nonsensical prosecutions in the future. That’s great. Really great. Its what we all fought for, and it is only right. (more…)
20 Sep 12 | Digital Freedom, Index Index, minipost, News and features, United Kingdom
The Director of Public Prosecutions has announced a consultation to establish clear guidelines on prosecutions involving social media . In a statement on The Crown Prosecution Service website announcing that footballer Daniel Thomas — investigated for allegedly homophobic tweets about Olympic divers Tom Daley and Peter Waterfield — will not be prosecuted, Keir Starmer QC said:
“To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration. In the first instance, the CPS will draft interim guidelines. There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible.”
Starmer and the CPS faced severe criticism for the handling of Paul Chambers’s “Twitter joke trial“. Chambers, who was found guilty of sending a “menacing communication” after he joked about blowing up Robin Hood Airport in Doncaster, had his conviction overturned in July of this year.
It emerged today that a man has been arrested under the Communications Act 2003 for allegedly setting up a Facebook page praising Dale Cregan, the Manchester man accused of killing two police officers.
27 Jul 12 | Uncategorized
Christopher Hitchens believed that the battle for free speech is “an all out confrontation between the ironic and the literal mind”. Today at the Royal Courts of Justice, a significant blow was struck for the forces of irony, humour and free speech against the dead, literal, bureaucratic mind.
Paul Chambers’ ordeal, which ended today when the Lord Chief Justice agreed that Chambers supposed “threat” to blow up an airport “did not constitute or include a message of menacing character”, is a grim reminder that what drives censorship can often be nothing more than an over-developed bureaucratic machine to which we feel obliged to adhere. At no point in this process, which has lasted over two years, did anyone genuinely believe that Chambers meant it when he tweeted “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!” Not the off-duty airport security worker who spotted the original tweet, nor his manager, nor the police, nor the Crown Prosecution Service – who shamefully decided to pursue the case anyway, pour encourager les autres – nor the presiding judges at the initial case and subsequent appeal. But there was a law, and a system, and it had to be followed, no matter that a young man would lose his job and be branded forever a menace as a result. Justice blind to reason.
Referencing Orwell in any article on free speech is dubious territory, but it really does pay to look at Nineteen Eighty-Four in this instance. The Party functions by creating a bureaucracy so enormous and all encompassing that it is actually impossible to escape. It thrives by narrowing language away to nothing – with the aim of not just obliterating language, but actually obliterating thought. There are no jokes — good or bad — on Airstrip One.
We do not, despite what our more dedicated conspiracists believe, live on Orwell’s Airstrip One. But we should nonetheless be wary of a system that, until today, placed process over principle. The Lord Chief Justice has today elevated the principle of free speech, humour and irony above process, small-mindedness and literalism.
