Terror on Twitter – Jonathan McCully

Threatening to commit a terrorist act on a major US Airline is not the best use of social media in the 21st Century. Nevertheless, on 13 April 2014 @QueenDemetriax tweeted;

@AmericanAir hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye

The person behind the twitter handle was a 14-year-old Dutch girl who was later arrested by police in Rotterdam. American Airlines made it clear that they treated such threats very seriously, and would pass on her IP address to the FBI for further investigation. In subsequent tweets @QueenDemetriax said;

“omfg I was kidding. … I’m so sorry I’m scared now … I was joking and it was my friend not me, take her IP address not mine. … I was kidding pls don’t I’m just a girl pls … and I’m not from Afghanistan”

This is just another example of a Twitter joke going awry, with serious real-life consequences for the social media user. What followed was a Twitter equivalent of “I am Spartacus.” Dozens of bomb threats were tweeted to American Airlines in order to show support for the 14 year old. @ShyyLicious tweeted;

I have a bomb under the next plane to take off

Another user with Twitter handle @nonfreak tweeted;

release her of I’ll bomb your HQ. you gonna arrest me now?

Oliver Smith (for the Telegraph) was reminded by this story of the unusual case in 2012 where two British tourists were kept in a US cell for 12 hours for an ill-conceived tweet. They had tweeted that they planned to “destroy America” and “dig up Marilyn Monroe.” However, their definition of ‘destroy’ involved bombs of the Jager variety, rather than there being any real threat to national security. Some commentators have described arrests of this nature as hypersensitive. Nonetheless, what are the legal implications of making terrorist hoax jokes on social media in the UK?

Section 127 of the Communications Act 2003

This section has serious implications for social network users. Section 127(1) 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 … of … [a] menacing character.” Section 127(3) details the penalty for this offence, namely a maximum prison sentence of six months or a maximum fine of £5,000. A high penalty for a misjudged tweet. Although Twitter post-dates this piece of legislation, it falls within the definition of a “public electronic communications network.” In Chambers v DPP [2012] EWHC 2157 (Admin) the Divisional Court held that because a message made on Twitter is accessible to all who have access to the internet, it is a message sent via a “public communications network.”

Section 1 of the Malicious Communications Act 1998

This section states that an offence is committed where a person;

1. Sends to another person a letter, electronic communication, or articles of any description;
2. Which conveys a threat; and
3. The purpose, or one of the purposes, in sending the communication is that it should cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

The penalty for this offence is the same as that under section 127 of the 2003 Act. This offence is very similar to the section 127 offence, however it envisages a much more targeted communication with specific intent to threaten the recipient of the communication (i.e. it applies more readily to one-to-one communications).

Section 51 of the Criminal Justice Act 1977

This section aims to prosecute perpetrators of “bomb hoaxes.” Section 51(2) reads;

A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.

If convicted of this offence summarily, the penalty is a maximum of six years imprisonment (or a maximum of a £1,000 fine). If convicted on indictment, the maximum penalty is seven years imprisonment.

Paul Chambers v Director of Public Prosecution

There seems to be a choice of sections available to the CPS when trying to prosecute perpetrators of “Twitter Terrorism.” However, the CPS seems to favour section 127 of the Communications Act 2003; this was the section used in the case of Chambers v DPP . Paul Chambers was a 26 year-old finance supervisor at the time he made his ill-judged tweet. On 6 January 2010, upon hearing that Doncaster Robin Hood Airport was closed, he tweeted;

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!

This message could then be read by his 600 ‘followers.’ There was no evidence that any of these ‘followers’ found the tweet to be of a “menacing character” or “offensive.” It was not a ‘follower’ who made a call to action. It was a duty manager responsible for security at Robin Hood Airport, who had conducted a general search of Twitter for posts referring to the airport, who brought the tweet to the attention of his manager. This just highlights the very public nature of Twitter; where, depending on one’s privacy settings, tweets are not just visible to the closed circle of ‘followers’ of any given account. They are, in fact, more widely accessible.

Ultimately, the airport police took no action in relation to the tweet and it was deemed a “non-credible” threat. However, the South Yorkshire police arrested him and he was later charged under section 127 of the 2003 Act.

Section 127 does not apply to “content services.” However, the High Court held that when posting a tweet one is sending a “message” by an electronic communications service. Therefore, the fact that the tweet was later read as “content” on the site (e.g. by searching for the tweet) was deemed irrelevant . It still fell within the ambit of section 127.

The High Court went to great pains to clarify that;

Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.

The offence will not be proved until the message is shown to be of a “menacing character.” In DPP v Collins, Sedley LJ described a menacing message as one which “conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen.” The High Court in the Paul Chambers case held that a message which “does not create fear or apprehension in those to whom it is communicated, or who may be reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.” Therefore, if twitter users view a tweet as close-to-the-bone banter rather than a credible threat, it is likely that the message is not of a “menacing character” and so will not fall foul of the section.

The High Court also noted the importance of the context of the message. Obviously posting tweets at a time of heightened sensitivity to terrorist threats increases the likelihood that it would create apprehension or fear in those who read it. Nonetheless, the court went on to observe that;

the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on “Twitter” for widespread reading, a conversation piece for the appellant’s followers, drawing attention to himself and his predicament. Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious warning. Moreover… it is unusual for a threat of a terrorist nature to invite the person making it to [be readily] identified, as this message did. Finally, although we are accustomed to very brief messages by terrorists to indicate that a bomb or explosive device has been put in place and will detonate shortly, it is difficult to [imagine] a serious threat in which warning of it is given to a large number of tweet “followers” in ample time for the threat to be reported and extinguished.

The Court concluded in the Paul Chambers case that, having applied an objective test, the tweet did not include nor constitute a message of “menacing character.” A further element of the offence to be proven is the mental element, which was held by the High Court as being of “basic intent” rather than “specific intent.” This element will be satisfied if the offender is proved to have “intended that the message should be of a menacing character… or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it.”

The CPS Guidelines

The CPS Guidelines are the rules that prosecutors should follow when approaching cases of this nature. The guidelines make it clear that those communications which may be considered “grossly offensive, indecent, obscene or false” should be subject to a high threshold, with prosecution being “unlikely” in many cases. Whilst communications which constitute “credible threats of violence to the person” or “communications which specifically target an individual or individuals” should be prosecuted robustly. “Credible threats” include those communications that are to be prosecuted under section 127 as being those which are of a “menacing character.” Therefore, this suggests that tweets that are likely to be deemed of a “menacing character” will be prosecuted ‘robustly’ by the CPS. However, those threats which are not ‘credible’ will not be so prosecuted.

The offence is committed by the sending of the message itself, regardless of whether and how it was received. Furthermore, the defendant has to be shown to have intended or be aware that the message was menacing, but this can be inferred from the terms of the message or from the defendant’s knowledge of the likely recipient.

Children

The CPS Guidelines explicitly state that;

The age and maturity of suspects should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and a prosecution is rarely likely to be in the public interest.

This consideration is particularly relevant to the @QueenDemetriax_ case. As was observed by Radhika Sanghani in the Daily Telegraph, this twitter joke is just another example of when a young person has posted something inappropriate on social media in their immaturity, and later came to regret it.  One only needs to be reminded of the position Paris Brown found herself in after her foolish tweets in 2013.

Public Interest

Due to the fact that these kinds of communication offences engage Article 10 of the European Convention on Human Rights protecting freedom of expression. This freedom can only be curtailed where it is necessary and proportionate to safeguard certain legitimate interests. These interests include national security, territorial integrity, public safety, and the prevention of public disorder and crime. The CPS Guidelines suggest that a prosecution would be unlikely to be both necessary and proportionate where;

a. The suspect has expressed genuine remorse;
b. Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
c. The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or
d. The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.

This is not an exhaustive list, but does offer a very useful guideline when considering tweets which may amount to a communication offence.

The Twitter Hoaxer

So what does this mean for the Twitter Hoaxers? Let’s consider the @QueenDemetriax_ case as if it had taken place in this jurisdiction;

Are the Tweets Menacing?

• Menacing: As explained above, this goes to whether the tweet created fear or apprehension in those to whom it was communicated, or in those who may be reasonably expected to see it. In the @QueenDemetriax_ case, although American Airlines took the threat seriously, it was unclear whether it created any kind of public fear or apprehension. If the tweet is of the nature that it is simply ‘brushed aside,’ then it is unlikely to be menacing.
• Targeted Tweets: The High Court in the Paul Chambers case referred to the fact that the tweet in question was not sent to anyone who could be in charge of security. Instead it was a general tweet, more in the nature of a “conversation starter.” In the @QueenDemetriax_ case, the tweet was in fact communicated directly to American Airlines using their Twitter handle. This could increase the possibility that such a tweet would be taken as a ‘serious’ or ‘credible’ threat.
• Context: The High Court in the Paul Chambers case also looked at the language and punctuation of the tweet when deciding whether it was meant to be taken as a “serious warning.” The court also pointed to the fact that the tweet was made in a way that the user could actually be easily identified. Social network sites, such as Twitter, give the user a platform  upon which they can post their thoughts and feelings anonymously. Although Twitter can use IP addresses to identify posters, it offers users the safety of anonymity. At this time, the girl behind @QueenDemetriax_ is known only as Sarah. It could be argued that she did not fear a reaction, because her identity was not easily traced. Once American Airlines mentioned they might have her IP Address, concern on her part started to kick in. There was very  little in the language of the tweet to suggest a ‘joke’ or a ‘hoax.’ Except arguably the rather abrupt use of the word “bye” at the end of the tweet. The only contextual aspect of the tweet which is on the side of @QueenDemetriax_ is the fact that it was made by someone who was clearly a Demi Lovato ‘fangirl,’ rather than someone demonstrating any kind of extremist tendencies.
• Twitter: It is rare that a credible bomb warning will actually be made through Twitter. As the High Court in the Paul Chambers case observed, it is unlikely that a serious threat would be made in such a way that it is read by many followers in ample time to stop the detonation. Nonetheless these tweets still have to be taken seriously. This will inevitably disrupt airline schedules; as was seen recently when a bomb threat was tweeted in relation to a flight leaving JFK airport on 16 April 2014. Although no bomb was actually discovered, the plane was grounded for two hours. After all, it is better to investigate less than credible threats than ignore a potentially dangerous one.

Would it be in the Public Interest to Prosecute?

• Remorse: @QueenDemetriax_ seemed to fluctuate between remorse and elation following the reaction to her tweet. Although she did apologise, she also reportedly offered to auction off her Twitter handle and seemingly reveled in her new found fame. This is unlikely to confirm in the mind of a prosecutor that she was felling genuine remorse for her actions.
• Removing Access: Speedy removal is likely to decrease the chances of prosecution of “Twitter Terrorism.” The @QueenDemetriax_  Twitter profile was taken down later in the day on which the offending tweet was made.
• Tolerable: One of the most interesting suggestions given in the CPS Guidelines as to whether prosecution would be in the public interest, is whether the communication goes obviously beyond what could conceivably be tolerable or acceptable in an open and diverse society. A “twitter bomb hoax” is likely to be a communication that is not easily tolerated in this way. The reason for this can be seen when comparing this crackdown on twitter trolls with “airport security hysteria.” As Helena Williams opined in the Independent;
  

  yes, I dislike having to take my boots every time I go through a scanner, and I wish I could carry my own bottle of water through, but I’d rather deal with a slight inconvenience than be caught up in a major security incident. This ‘over-the-top’ security approach could serve to offer peace of mind to nervous passengers … and even deter possible attacks. To a lesser extent, America’s reaction to nuisance Twitter messages may actually deter trolling – trolls can have their fun elsewhere without inviting the attentions of the FBI.

  Perhaps chilling this kind of Twitter speech needs to be accepted, so that ‘credible’ and ‘serious’ threats are more easily identified. After all some news sources have already dubbed Twitter as terrorism’s preferred social network.

This post originally appeared on the Mediabelf blog and is reproduced with permission and thanks.