Here is a joke:
What’s the difference between Mark Bridger and Santa Claus?
You can work out the punchline from the fact that Santa comes in December.
Sick? Tasteless? Funny? Offensive? All of those? Or is it so bad that it is criminal — literally? (If you’re not aware of the context of the joke try here.)
The answer, according to magistrate Bill Hudson is that it is criminal, literally, and worthy of a 12-week jail sentence.
“The reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.”
And the “crime”? It was someone posting the above joke (plus milder ones) on their own Facebook page, a page that “was available to a large number of people”. That’s all.
So who decided that making a tasteless and offensive joke in public was criminal? Parliament did, in passing Section 127 of the Communications Act 2003. This act was passed before Facebook and Twitter took off, and was aimed at television and radio networks. The relevant wording is:
“A person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.”
Even more of a catch-all is the following section:
“A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he … persistently makes use of a public electronic communications network.”
Annoyance is a rather weak word; according to the concise OED to “annoy” means to “make slightly angry”. Yes, making someone slightly angry is criminal, if you use the internet “persistently” for that purpose. So, if you were discussing a controversial topic with someone on the net, and the exchange of posts lasted for a few hours and got a bit heated, then all it takes is for someone to get “slightly” upset at what you are arguing and you are then a criminal.
Britain seems to have sleep-walked into a situation where sick jokes are criminal, where merely offending or upsetting someone is a criminal act. Isn’t it accepted that free speech is valuable, that it is precisely speech that offends someone that needs protection, and that there is no right to never be offended?
Well, sort of. At least there is Article 10 of the European Convention on Human Rights which says that:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.”
There are allowable restrictions for:
“… interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …”
None of those allow restrictions on merely causing offense, not even “gross” offense. “Protection of … morals” doesn’t cover that, and nor does “rights of others”, since there is no right to be un-offended. Convictions under this Section 127 need to be appealed to Strasbourg as soon as possible.
As bad as such prosecutions are, their capricious enforcement is perhaps worse. The culprit in the above case, Matthew Woods, didn’t invent the joke, but copied it on to his own Facebook page. It would thus have been seen only by those deliberately looking for Matthew Woods’ Facebook page. However, someone saw it, took a screen-grab, and posted it to a Facebook page for volunteers coordinating their search for the missing child, leading to outrage at Woods’ joke, and then the prosecution.
Why was Woods’ re-posting of the joke on his own Facebook page a criminal act worthy of 12-weeks jail when there has been no prosecution of the person who took the screen-grab and reposted it to a far wider audience?
Am I committing a criminal act by writing this piece and including the joke (moderated by the lack of the punchline)? I could claim a public-interest defence: that in order for justice to be done, in order for citizens to have confidence in the judicial system, we need to know what sort of behaviour is sufficiently bad to result in 12 weeks jail. And the only way in which citizens can be informed of this is if they are informed of what was said. Yet, there is no public-interest defence in the wording of Section 127.
How about this joke, posted on Twitter by the comedian Frankie Boyle:
I’m struggling to see why the joke that heads this post is so much worse than Frankie Boyle’s joke. Both were placed on public internet sites, and I’m willing to bet that Boyle’s Twitter feed, with over 1 million followers, is read by vastly more people than the Facebook page of a hitherto unknown 19-yr-old. Yet no prosecution has followed, whereas Matthew Woods was sentenced to 12 weeks. Why? Is this because Frankie Boyle is an established and well-known comedian, whereas unemployed 19-yr-olds are the sort of people who the police and magistrates usually regard as up to no good?
Offensive and criminal? Cutting satire? Fair comment about powerful institutions? Or worth several riots? Certainly the Danish cartoons were milder than this one.
And how can we uphold the very necessary right to criticise religions and the powerful if we then prosecute for merely giving offense? Which prevails, the free speech or the outlawing of speech that offends someone? We can’t tell the Islamic world that, on principle, we uphold free speech despite the offense caused, if we then do exactly the opposite.
Why does this matter? Why do we want the right to offend someone? It isn’t because we want to upset families of missing children, it is because the right to say something that offends someone is the bedrock of all our freedoms. We can only have a liberal democracy if we can hold the powerful, the establishment, and the government to account, and that requires the right to say something that might upset them. The first thing a totalitarian regime does is prohibit criticism of itself.
Offense is so subjective that, were one to outlaw offensive speech, then anyone can censor anything by claiming “I’m offended”. And that’s why we need the right to offend the powerful, the politicians, presidents, churches, religious leaders, or anyone else influential in society, anyone who might attempt to protect their privilege by outlawing criticism, doing so by claiming that the criticism is “offensive”. Only then can we hold them to account and prevent society being run by the corrupt. The scandal of child sexual abuse by the Catholic Church in Ireland persisted for so long exactly because of a deference that regarded the Catholic Church as beyond reproach.
But no-one is suggesting outlawing such criticism, you might say. Aren’t they? How about criticising Scientology by holding a placard saying that “Scientology is a dangerous cult”? Fair criticism? No, according to a police inspector, who deemed it too abusive and insulting to allow. The placard was confiscated and the teenager faced prosecution under Section 5 of the Public Order Act. Charges were eventually dropped, after an outcry from free-speech campaigners, but this shows what might happen if we are not vigilant in challenging the idea that speech that causes offense is thereby criminal.
Section 5 of the Public Order Act is gaining notoriety, and it’s own repeal campaign, owing to cases such as this. This section outlaws “abusive or insulting words” that are likely to cause “harassment, alarm or distress”. Interpreted sensibly, this could be considered reasonable. According to the Concise OED:
Harass: torment by subjecting to constant interference or intimidation
Alarm: anxious or frightened awareness of danger
Distress: extreme anxiety, sorrow or pain
These are strong words: torment, extreme anxiety, frightened awareness of danger. If a deep-sea fishing boat were “in distress” then the situation would be serious and life threatening. But the police, courts and the Crown Prosecution Service don’t interpret this sensibly, to them “distress” is the mild annoyance you feel if you see a placard calling your religion a “dangerous cult”, or the slight annoyance at being sworn at, or perhaps called a “pleb” (the charge of “cheeking the police” in Wind in the Willows was intended to be humorous; the Public Order Act seems to be making it a reality).
Bizarrely, this “distress” includes that caused (err, to whom?) by a kid convicted of saying “woof” to a dog. And, no, I am not making this one up (though I’m unclear why the police didn’t also arrest the dog; we’re told that it barked back).
Another example of the misuse of Section 5 was the conviction and fining of a Christian street preacher who displayed a sign saying that gays are immoral — and well done to gay-rights-activist Peter Tatchell for testifying in favour of his right to do this.
Mocking and racially abusing someone on Twitter while drunk is nasty, but is sentencing the culprit to 56 days jail and derailing his whole life a proportionate response? The internet has already developed the tools to deal with such situations, with spam filters, privacy settings, the ability to moderate sensitive websites, and the ability to use “block” and “follow” tools to decide who you interact with. The criminal law should not try to police offense occurring on the internet.
Currently the cases are coming through thick and fast. A man has been jailed for 4 months for wearing a t-shirt saying that the murder of two police officers was “perfect justice”. A Muslim man has been convicted for posting on Facebook that British soldiers “should die and go to hell”.
Err, sorry magistrates, but in what way are those opinions illegitimate? I disagree with both of the above sentiments, but I regard them both as acceptable opinions in a free society. Indeed I personally am far more offended and outraged by the reaction of the police and the courts, because the state starting to act like this, to criminalise mere opinion on the grounds that it is “offensive” is far more dangerous to the well-being of society than the speech they are censoring.
Thankfully the Director of Public Prosecution is consulting on guidelines about such prosecutions. But guidelines won’t change these laws: Section 127 of the Communications Act and Section 5 of the Public Order Act should both be repealed.
Yes, harassing someone on the street should be criminal, and, yes, offensive confrontations that are likely to escalate to violence should be criminal, but it is those aspects, the likelihood of violence, the putting of someone in fear of violence, that should be criminal, not the uttering of insults or the causing of offense.
This would limit insulting someone on the street, where a physical threat could be implied, and where “breach of the peace” escalation to violence might be likely, but it should be far less limiting on the internet, where anyone not liking what they read can simply stop reading, and not be in any physical danger (no-one has yet managed to punch another person over the internet).
Free speech is important. This is the land that produced John Stuart Mill’s On Liberty. Could politicians and magistrates please read it?
Update: What a shocking week it’s been for free speech. If enough of us say these things perhaps it will make a difference. And this appalling account from Egypt shows what can happen in a society where mere insults and offense are considered criminal.
Update 2: A teenager has been arrested for posting on Twitter an image of himself burning a Remembrance-day poppy accompanied by the words “How about that you squadey c***s.” Is not the whole point of a free society is that it is one in which the local police and magistrates cannot just take a dislike to someone’s opinion and lock them up for expressing that opinion?
Update 3: After pressure from the Reform Section 5 campaign, Section 57 of the Crime and Courts Act 2013 removes the word “insulting” from Section 5 of the Public Order Act so that it now criminalises the use of “threatening or abusive” words that are likely to cause “harassment, alarm or distress” (rather than “threatening, abusive or insulting” words).
It remains to be seen what effect this has on court rulings. To my mind “abusive” and “insulting” are close synonyms, and thus removing one while retaining the other may make little difference.
From Oxford Dictionaries:
abusive: “extremely offensive and insulting”
insulting: “disrespectful or scornfully abusive”
Update 4: In June 2013 the DPP announced guidance on prosecutions regarding communications on social media. These should prevent the loonier prosecutions. Again, though, we await to see how these will work in practice. While these guidelines are better than nothing, they don’t change the law. I am solidly against the idea of having broad, catch-all laws with the promise of “don’t worry, the prosecutors will be sensible about how they use them”.