Right to reply

David Allen Green is an excellent blogger: I’ve greatly enjoyed reading Jack of Kent’s blog for a couple of years – I’ve left occasional comments and we’ve had a couple of Twitter exchanges.  He’s also done excellent pro bono work in a series of recent libel trials.

But like most bloggers – and every lawyer – Green struggles to acknowledge that his worldview may be merely one of many competing standpoints.  He builds his argument to support his position and in doing so is inevitably selective in the sources he uses to sustain his thesis.  Like most bloggers and every lawyer, Green is therefore essentially a politician.  And he’s spun like Mandelson over his outrage at the treatment of Paul Chambers.

Chambers has been convicted under section 127 of the Communications Act 2003, which states that:

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”.

Chambers admits sending the tweet: “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!!

Green was incorrect in suggesting (as he did here) that he could face prosecution for repeating the text of Chambers’ tweet in a 1,500-word case analysis.  He could not – as he well knows – because of the context in which the words were repeated.  Indeed, the case on which Green has built his argument supporting Chambers’ appeal – DPP v Collins – makes it clear he can sleep soundly.  Sedley LJ said in that case’s High Court appeal:

The same content may be menacing… in one message and innocuous in another.  As was pointed out in argument, counsel in the present case are unlikely to have exposed themselves to prosecution by discussing its facts on the telephone.  A script writer e-mailing his or her director about dialogue for a new film is not likely to fall foul of the law, however intrinsically menacing… the text they are discussing.  In its context, such a message threatens nobody… Here, as elsewhere, context is everything.

Green has quoted Collins extensively, but not that extract.  Perhaps he may have appeared less daring by highlighting both that he was taking no risk in repeating the tweet and that the case turns on the context of Chambers’ words, not the words themselves.

Green has implied that section 127 requires the message itself be “menacing” (ie be a threat).  It must not; it must merely be “of a menacing character”.  It is a pedantic but important distinction.  Again, Collins is explicitly supportive of this point.  In the House of Lords appeal, Bingham LJ said:

[T]he object of section 127(1)(a)… is not to protect people against receipt of unsolicited messages which they may find seriously objectionable…  The purpose of the legislation… was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society…  [I]t is plain… that the proscribed act, the actus reus of the offence, is the sending of a message of the proscribed character by the defined means. The offence is complete when the message is sent. Thus it can make no difference that the message is never received… Nor… can the criminality of a defendant’s conduct depend on whether a message is received by A, who for any reason is deeply offended, or B, who is not. On such an approach criminal liability would turn on an unforeseeable contingency…  It is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just… society, and that the words must be judged taking account of their context and all relevant circumstances.

It seems reasonable to assume this applies equally when deciding whether a message is “of a menacing character”.

It is not contentious to propose either that intimating blowing up an airport is “of a menacing character” or that a significant proportion of the population would consider it so.  And if the reader disagrees, I invite her or him to consider the following scenario.

Imagine your entire family is booked to fly on a TwitAir flight tomorrow.  Tonight, a tweet appears on Twitter’s public timeline threatening that flight.

Because of Chambers, Sky News is monitoring Twitter for things like this and reports the threat.  But, because the tweet is littered with exclamation marks and couched in cartoonish terms, many think it’s a joke and the authorities don’t bother to investigate.  The police tell Sky they’re going to let it slide because it’s “obviously a joke”.

Would you let your children, spouse and parents get on that plane tomorrow?  Would you really…?

And if that TwitAir flight explodes mid-flight, killing 250 people, would you want to be the police officer who chose not to investigate?  Or that officer’s Chief Constable?  Or the Home Secretary explaining to Parliament and voters the failings that led to such a catastrophe?

Would you really…?

Not everybody uses Twitter.  Not everybody is steeped in Twitter’s culture of throwaway banter and Generation Meh’s affected air of ennui.  Twitter’s pervasiveness in its users’ lives and its media omnipresence do not alter the fact that many people simply don’t understand what Twitter is or how it works.  Perhaps those people shouldn’t be presiding over a criminal trial in which Twitter and its culture are central to proceedings, but they exist in large numbers.  And they might well be within that significant percentage that feels that, generally speaking, jokes about bombing airports are no laughing matter – maybe even “of a menacing nature”.

Twitter is not, for Lord Bingham’s purposes, “society”, merely one relatively small part of society.  The standards that prevail on Twitter do not necessarily co-exist harmoniously with wider society’s standards.  This is not about two Doncaster judges having no sense of humour, but the fact that many Britons would genuinely be unpleasantly startled to witness someone joke about blowing up an airport.

This is not (just) a “war on terror” thing.  Sixty seconds on Google shows it’s been going on since the birth of the Web; to wit, Seattle in 1996 – “When they’re arrested, people are surprised and feel stupid. If they were joking, that’s something they can explain to the magistrate.

Five whole years ago it happened with SMS messages – “I have always maintained this was a misunderstanding.

2004 – “He might have known it was a joke but we and the security staff didn’t.

There are dozens more examples on the Web and countless more pre-dating the digital age: certainly there is one infamous, horrific example of why you don’t falsely shout “Fire!” in a crowded theatre.

Paul Chambers seems a good and honourable person.  It is undisputed that he did not intend harm towards Robin Hood Airport and he seems understandably mortified by the Kafkaesque nightmare inside which he has spent 2010.

But Chambers is also clearly an intelligent and educated person.  And, while it’s possible for intelligent, educated people not to pay much attention to current affairs, it can’t be beyond Chambers’ wit – as an intelligent and educated Briton, raised in a country that’s been in a permanent state of alert against terrorism since 1968 – to know that joking about blowing up mass transit systems may be open to misinterpretation, taken seriously by the authorities, offend someone and/or seem “of a menacing character” when viewed in isolation in a context-shredding 140-character tweet.

Indeed, Chambers’ intelligence helps the CPS meet section 127’s limited mens rea threshold. Collins does not require proof that Chambers intended his tweet would threaten Robin Hood Airport; the prosecution doesn’t even have to prove Chambers intended his tweet to be received by anyone connected with or using the airport.  Following Collins, the CPS need only demonstrate the tweet was “couched in terms… giving rise to the inference that a risk of [causing menace] must have been recognised” by Chambers.

Surely Chambers knows joking about blowing up airports could cause menace?  Would he have joked to airport security checkpoint staff about blowing the place sky high?  Would he have laughed in similar terms during a telephone conversation on the pavement outside the terminal? I doubt it.  Even if he did, does he really not imagine someone overhearing that conversation might think he was not, in fact, joking?

One of Chambers’ supporters is Stephen Fry, himself recently guilty of speaking before properly engaging his brain.  While Fry may be charming in person, his words can clearly be misconstrued in writing.  Sardonicism, sarcasm and irony do not translate well into print where tone, nuance and wryly-arched eyebrows are absent.  How many emailers have not had to send a follow-up email, after a friend has taken unexpected offence at an ‘ironic’ message, along the lines of “Er, I was JOKING…”?

Chambers can say he was “obviously joking” as much as he wants: that’s irrelevant to section 127.  As such (and however depressing it is) Chambers appears to be guilty of the offence with which he was charged.  The two judges were placed in invidious positions, but – notwithstanding their apparent unfamiliarity with Twitter – they both correctly applied the law as it stands.

There is undoubtedly a strong element of “There but for the grace of God…” among Chambers’ support, but he is not, sadly, the first person to have had his life blighted by a criminal record resulting from rash words or deeds.

I firmly believe Chambers should never have been charged.  In particular, the CPS lawyer(s) who chose to proceed to trial instead of issuing a ticking off should be castigated.  There has been no public interest served by this prosecution, save – perhaps – that 30,000-odd Twitterers repeating Chambers’ message may bring the statute into disrepute and lead to its amendment.  That would be scant consolation for Paul Chambers, but would be undeniably delicious.

A large irony is that if some of those re-tweeters found themselves soaked, shivering or sweltering for hours outside an airport evacuated due to a bomb hoax, they would almost certainly vent on Twitter their frustration at the inconvenience they were suffering due to that hoaxer’s public nuisance…

Some Twitterers have forgotten that actions carry consequences.  The digital life many Twitterers have adopted is still not the norm within society.  Even if it were, those digital lives are still governed by the same laws that apply to more traditional, analogue existences.

While aspects of this affair are troubling, I am neither surprised nor outraged by its central facts – that someone who sent a tweet joking about blowing up an airport has been convicted of a public nuisance offence.

The law is the law.  Campaign to change it, by all means.  But don’t try to appeal it on the grounds of “common sense” because, and as David Allen Green knows, the law is the last place you should look if you are seeking that particular commodity.


Jonathan Westwood is the Legal Director of Copart UK: he writes above in a personal capacity.  A fuller version of this article appears at jonathanwestwood.co.uk.