05 November 2012

Carriage Circuses

From Lilian Edward's discussion in the INFORRM blog of the 'Robin Hood Airport Case', Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) in relation to the UK Communications Act 2003 s 127 -
... s 127 prosecutions continue or are urged on by a public increasingly fed up with an increasing variety of online racist bullies, trolls, stalkers etc. For example, in early 2012 racially motivated tweets posted relating to the footballer Stan Collymore were also prosecuted under this legislation. In late September 2012, Neil Swinburne, 29, was also prosecuted under s 127 for putting up a page apparently glorifying an alleged murderer of a policeman. Meanwhile on the very same day, the DPP, Keir Starmer, was driven by the rise of s 127 prosecutions and apparent mounting calls for its catch-all use in any case of disturbing content on social media, to declare that he would be issuing guidance on social media prosecutions. Asked to consider whether to prosecute Daniel Thomas, who had made trollish and homophobic tweets about the Olympic diver Tom Daley, the DPP indicated that s 127 should not be seen as a carte blanche for prosecuting content which, however upsetting to some, would normally fall with guarantees of freedom of expression in a democratic society. In particular he quoted the seminal ECHR case of Handyside v UK which says that freedom of expression includes the right to say things that ‘offend, shock or disturb the state or any sector of the population’ before concluding that prosecution in the Daley case would not be appropriate.
We therefore now await the promised guidance. But as the editor of the Society for Computers and Law journal has cogently pointed out, guidance on its own is simply not good enough. The law itself must have a quality of predictability and certainty, otherwise the rule of law is in jeopardy. This is especially true of a criminal provision which restricts freedom of expression. Why then, we might ask, is s 127 drafted so widely? Partly because, although it appears to be a modern post-Internet provision, its direct and very close antecedents actually date from long before the Internet era and even before Handyside. These antecedents include the Post Office (Amendment) Act 1935 (and two subsequent PO Acts) – which dealt with messages sent by post and telephone – the British Telecoms Act 1981 and the Telecommunications Act 1984, s 43. Section 127 of the 2003 Act basically repeats the 1984 Act provision wholesale, itself almost a word for word repetition of these earlier Acts. The 1984 Act was notable for changing the scope to apply to any ‘public telecommunication system’ (a necessity following the deregulation of the state monopoly telephone network in 1981). This phrase itself was taken, it seems, from EC telecoms law, and causes problems of its own, debated in Chambers (see further below).
The legislative history of s 127 is usefully narrated in DPP v Collins (at [6]), a case involving a man who made repeated telephone calls to his local MP’s office asking for him to do something about the ‘black bastards’ – and similar even more unpleasant terms. He was charged with sending ‘grossly offensive’ messages under s 127. On appeal to the House of Lords, the charge against Collins was upheld but what is particularly interesting for present purposes lies in Bingham LJ’s analysis at [7] of what the purpose of s 127 is.
It is crucial here, parenthetically, to note that s 127 is hardly a lone legislative bulwark against Internet trolls and harassers. There is an abundance of law to deal with what the CPS calls ‘communication offences’ or alternately ‘public order offences’. Indeed so much law is available to charge social media content that appears to offend the (or a) public that it is often hard to find out from journalistic coverage exactly what legislation is being used, though the majority of cases involving Twitter do seem to use s 127. For example, in another recent controversial case, 19-year-old Azhar Ahmed was convicted of ‘racially aggravated public order offences’ after he posted an angry Facebook status update about the reporting of the latest British Army fatalities in Afghanistan. It appears s 127 of the Communications Act 2003 was used to charge in this case, but such cases could however also fall under the Public Order Act 1986 (POA), s 18 . By contrast, when Liam Stacey, a 21-year-old biology undergraduate, made ‘racially aggravated comments‘ (ie tweets) about footballer Fabrice Muamba, he was apparently charged under the Crime and Disorder Act 1998 before being sentenced to 56 days in jail. Other sections of the POA are also potentially relevant to social media comments: notably s 4A which deals inter alia with ‘threatening, abusive or offensive words’ which cause ‘intentional harassment, alarm or distress’.
The Protection from Harassment Act 1997 (PHA), which operates slightly differently in England and Scotland, has also been used successfully on several occasions to charge trolls who send repeated upsetting or vile messages to users on sites like Facebook and Twitter. The PHA prescribes that any two ‘acts’ which form a course of harassing conduct can be charged as a crime. These provisions were recently used by, eg, Nicola Brookes, who, to great publicity, won a Norwich Pharmacal order against Facebook in order to reveal the true names of, and start proceedings against, her online trolls under the 1997 Act. An Adjournment Debate in Parliament on 17 September 2012 noted not only these but also the possibilities of using the Public Order Acts and the Computer Misuse Act. Private civil damages can also be obtained both under the PHA and by common laws like libel.
Finally there also exists (albeit in England and Wales only), the Malicious Communications Act 1988 which, though little mentioned in recent social media cases, still exists and is of significance as a contrast to s 127. Again a pre-Internet statute, its original target seems to have been poison pen letters, although it was updated in 2001 to apply to ‘electronic communications’ – ‘oral or otherwise’ But the speciality of the 1988 Act is that it is intended to apply only to one-to-one exchanges and not to one-to-many broadcasting. It explicitly prescribes that the communication must be ‘sent to another person’.