Beyond a joke? Social Media, free speech and “grossly offensive” communications – Eloise le Santo

This week a teenager from Lancashire was sent to prison for making sick and incredibly distasteful jokes on his facebook page concerning missing 5 year old April Jones and Madeline Macann. Matthew Woods, who is 19 years old, is said to have adapted the jokes from Sickapedia, a website which publishes sick jokes, and posted them ‘in a moment of drunken stupidity’. Woods pleaded guilty and was sentenced to 12 weeks imprisonment.

The case was quickly picked up by various media outlets and has been widely commented on across the blogosphere (for instance here, here and here). Most posts have been critical of the prosecution, although some expressed a hope that it would serve as a warning to other users of social media, and make them think twice about posting similar messages.

Woods was prosecuted under, the now notorious, s127 of the Communications Act 2003 subsection 1 of which states that;

“A person is guilty of an offence if he—

(a) 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 …”

This case is the latest in a string of similar cases involving social media and the Communications Act. The most well know of which is obviously the ‘twitter joke trial’ (Chambers v DPP  [2012] EWHC 2157),which ultimately resulted in Paul Chambers having his conviction for tweeting a joke about blowing up Robin Hood airport overturned on appeal (reported in this blog here). More recently, Matthew Smith was charged under s127 for sending abusive messages to a former football player. Smith later pleaded guilty and was sentenced to 40 hours unpaid work and a fine. Last month, a man from Liverpool was arrested under the act for setting up a facebook page praising Dale Cregan, the man arrested on suspicion of the recent murders of two police officers in Manchester.

During the Olympics two men were arrested for sending offensive tweets to the diver Tom Daley. One, a 17 year old boy, made offensive comments about the athlete’s dad and threatened to drown him. The other was released without charged after the DPP said his homophobic tweets did not meet the threshold of being ‘grossly offensive’. This week Azhar Ahmed was sentenced to 240 hours of community service for posting an offensive update to his facebook page about British soldiers in Afghanistan, following the death of six British soldiers.

Ahmed’s case is particularly troubling, because the sentiments he had attempted to convey, while undoubtedly ill expressed and distastefully put, had a distinctly political nature. Ahmed had tried, ineloquently, to make the point that the deaths of the soldiers had received a disproportionate amount of attention compared with the deaths of civilians during the war. Admittedly he did so in a crude, and yes even offensive way but the freedom to express views that are offensive and distasteful is at the very heart of free speech. Popular and well received views do not need protecting: no one is going to complain or try to silence those who are ‘preaching to the choir’. It is precisely the ability to express unpopular or unwelcome views that makes free speech such an important element of a democratic society.

In a post following the arrest of the man allegedly responsible for creating the facebook page that praised a suspected murderer, it was suggested that, ‘[i]t will always be hard for the police to tackle the decline in civility that seems to come the moment you hand people a computer, the internet and a darkened bedroom’. However true this may be, it is missing the point. It should categorically not be the role of the police to do any such thing. The police should only concern themselves with behaviour sufficiently serious to be criminal, not mere incivility. We must be careful that the (perhaps entirely justified) feelings of revulsion and disgust elicited by comments such as those made by Matthew Woods do not lead us to conflate behaviour that is unpleasant, stupid and in poor taste with that which should rightly be considered criminal. Arguably, this is exactly what s127 does.

By far the most troubling aspect of s127 is the highly subjective nature of concepts such as ‘grossly offensive’. What is grossly offensive to some may not be to others. Further, the distinction between what is merely offensive (and therefore legal) and ‘grossly offensive’ (and thereby covered by s127) is a difficult one (as the DPP notes himself here). This means that it is difficult to predict what will be caught under the law, and what will not. The range of sentences received by those prosecuted under s127 so far illustrate precisely the subjective nature of judging just how ‘grossly offensive’ particular comments are.

Another worrying issue with s127 is just how broad and far reaching it is. Are we seriously suggesting that all indecent or obscene communications should be a criminal offence? What about internet pornography? Why should pornography be illegal on the internet when it can be published perfectly legally in ‘hard copy’? Why, for that matter, does the choice of media make so much difference? Would anyone seriously suggest that, had Matthew Woods made his inappropriate jokes to his friends in the pub instead of online, the correct way to deal with it would have been by phoning the police? What about the implications for satire and comedy? Should we criminalise jokes just because they are in poor taste? (Others have already pointed out the similarities of the comments made by Woods with those made by controversial comedians such as Frankie Boyle.)

The recent prosecution of Matthew Woods, and other similar cases, should lead us to question whether we need s127 at all. Of course it is right that when comments ‘overstep the mark’ such as when someone incites violence, or executes a prolonged campaign of harassment, the criminal law should step in. However, there is already a whole panoply of other laws that are capable of adequately responding to such behaviour. Restricting freedom of speech because a comment is offensive, or even grossly offensive, is dangerous territory. The fact is, in the realm of social media some people are offensive and unpleasant, just as in society some people are offensive and unpleasant. Of course we would all prefer that people were nice, considerate and generally respectful of others online, but at the same time they should be free not to be. By all means challenge such behaviour, dissect it, dismiss it, ridicule it, respond to it, engage in debate with others about it. But don’t use the criminal law to sensor it.

In fact, as others have suggested, perhaps the best way to deal with such people is just to ignore them until they go away. Much like the fact that censorship of a particular book or film exponentially increases its popularity, these prosecutions only seek to ensure the wide dissemination of foolish and distasteful comments. If these posts had been ignored they would have been seen by perhaps a few hundred people at most. Now both the fact of the posts, and in some cases the actual words used, have been widely reported in the national media and online.

The successful appeal in the Chambers v DPP  was heralded as a victory for common sense. It was hoped the judgment hailed a more reasonable approach to communications sent via social media, but as this most recent case shows, the position is still far from clear. Given that lack of clarity, the news that the DPP has begun holding a series of ‘roundtable’ events to discuss s127 and the balance that needs to be struck between free speech and the application of the criminal law is to be welcomed. As it stands, s127 represents an unnecessary and chilling encroachment on free speech and the increasing prosecutions under this legislation should be cause for serious concern. That such prosecutions are likely to lead to self censorship is also troubling, given, as Lord Judge made clear in Chambers v DPP at [28], people should be ‘free to speak not what they ought to say, but what they feel’. Those who use social media to incite violence or harass others undoubtedly should attract the attention of the law, but being sent to prison for making a sick ‘joke’? Now that really is offensive.

Eloise le Santo is a trainee barrister at Matrix Chambers