The problem of applying a 2003 offence to modern social networks.
Yesterday was the seventh day in court for Paul Chambers in respect of the so-called TwitterJokeTrial. The tweet in question was sent nearly two and a half years ago. Now nine judges or magistrates have heard the case. The costs on both sides run into the tens of thousands.
Although we now wait for the decision of the High Court, it is now clear from what was said in open court yesterday that one inherent problem in this case is the application of an offence based on telephony to social media communications. What does it mean for a message to be “sent”? Is it sent only to those who follow you? Or to anyone capable of finding the message through a search function?
Section 127(1) of the Communications Act 2003 provides that it is an offence to send by means of a “public electronic communications network” a message or other matter which grossly offensive or of an obscene, indecent or menacing character. In predecessor legislation which goes back to the 1930s, the scope of the offence was limited to telephony. And conceptually this worked well: with a telephone call, fax, or telegram it was clear what was being sent by whom and to whom, and when. There was legal certainty.
However, when the Communications Act 2003 was passed the reference to a telecommunications system was broadened to “public electronic communications network”. That phrase in turn was taken from the 2002 EU Telecoms Framework Directive. By using that phrase – which effectively covers almost anything over the internet – the previous offence in the 1984 Telecommunications Act was dramatically widened. There appears to have been no parliamentary debate. This was not a piece of eye-catching terrorist legislation or some flag-waving crackdown criminal justice bill. However, by this simple switch in terminology, one of the most far-reaching offences of the last few years was created.
There are three issues with this. First, the Crown Prosecution Service (CPS) see the offence section 127(1) as one of “basic intent”. There does not need to be the intent to be menacing, obscene, indecent, or grossly offensive. It is enough that an objective person would see the message as having the required quality of content. And, as any lawyer knows, the person on the Clapham Omnibus is in reality a judge in the court room. Such judges may have views of what menacing, obscene, indecent, or grossly offensive very different from the person sending a tweet or posting a comment.
Second, the CPS also seem to regard the offence as being committed as long as the material in question has travelled over an internet connection at any stage. Their position is that it does not matter if the message is typed straight into a platform such as Twitter or Facebook: the internet connection is the thing.
Third, there is virtually no case law on what the correct legal tests are for the offence. This is because although the statutory provision has been around in some form since the 1930s, the offence was rarely litigated and convictions (it seems) never appealed or at least reported. So coupled with the breadth of the new provision is incredible uncertainty as to when criminal liability applies or not. The only reported case, which is Collins of 2006 (see relevant links here and here), deals with voice messages held to be “grossly offensive” (and it was, technically, a decision on the 1984 Telecommunications Act). But other than Collins, the case reports are silent.
All the above did not matter when the offence was limited to telephony of one kind or another. It would perhaps not matter if the offence had extended only to emails or internet telephony. The real problem lies in social networks and message boards, where messages are sent for certain people to see, but which can also, in principle, be accessed or searched for by anyone with an internet connection. It is not clear when a message stops being a message. If one tells your followers on Twitter a joke which can, when wrenched out of context by a search function, seem grossly offensive, obscene, indecent, or menacing, then the law as currently interpreted may well criminalise you, regardless of your intention.
It may well be that parliament did not realise that it was widening the offence so significantly in 2003. It certainly did not know about the types of social media platforms which developed after 2003: Twitter, for example, started in 2006. The 2003 Act expressly carves out “broadcasters” from the scope of the offence. But there is no safeguard for those whose internet messages are capable of being accessed by once they are posted. A message which is not a menace or an obscenity in the context of where it was actually posted may run the risk of becoming so when it is found by an internet search.
The American writer HL Mencken once said that a puritan is someone with the haunting fear that someone, somewhere, may be happy. Similarly, there will be always someone, somewhere, who will find a certain type of message to be menacing, obscene, indecent, or grossly offensive. And such people often crawl the web in search of things to be upset by. A wide interpretation of section 127 will be a licence in future for busybodies to report supposed transgressions; and it will be up to the CPS and the courts to then adopt their “ordinary person” test of whether the offence was committed regardless of whether anyone was ever menaced or grossly offended.
The TwitterJokeTrial is possibly significant about many things: for example, it shows just how the justice system deals with free expression and the imposition of criminal liability. The tweet of Paul Chambers was self-evidently jokey in content and was intended only for his then 690 followers to see and appreciate. He did not send it to the airport nor even intended for the airport to see it. But he now has a criminal record and has lost two jobs because someone found the tweet on a search some days later.
TwitterJokeTrial is also important for how it demonstrates that an offence from an age of telephony struggles to deal with communications on social networks on the World Wide Web. These were not the messages which those enacting the 2003 Act had in mind, if they had any in mind at all. It is perhaps clear who is sending the message in a social media context but it is not clear who the recipients are. The analogy with telephony breaks down and the offence still applies.
The three High Court judges are now deliberating this amongst other points raised in the appeal. Judgment is reserved. It is fairly certain from what happened in court that the eventual judgment will seek to match a 2003 offence to more recent social media developments. The judges were clearly conscious of the issue of social media in the appeal hearing. It will be interesting to see how they solve this problem.
David Allen Green is media correspondent of The Lawyer and solicitor for Paul Chambers.