We haven’t been told why these officers took it upon themselves to make the visit. But it is concerning. At best it demonstrates confusion about the application of the criminal law to social media, particularly at election time. But it also raises questions about politicised policing and freedom of expression in a political context. As the Tweeter himself said
“It wasn’t until after they left that I questioned why they had visited me in the first place. A complaint had been made but with no legal basis. Not a police matter. So why did they come to my home in the middle of a Saturday afternoon? … Why would a political party, so close to an election, seek to stop people finding out what their policies are or their past voting record? And is it not a matter for concern that a political party would seek to silence dissent and debate in such a manner?”
Political speech is of course given a highest degree of protection under Article 10 in the jursiprudence of the European Court of Human Rights. In Bowman v UK, ([1998] ECHR 4) the Court found that the UK had breached Article 10 by charging Mrs Bowman (and anti-abortion campaigner) with an offence under the Representation of the People Act for distributing leaflets which indicated the major parties’ position on abortion and embryology. She was said to have fallen foul of the statutory restrictions on election spending in s.75 of the Representation of the People Act 1983.
In finding that there had been a disproportionate interference with Mrs Bowman’s freedom of expression, the Court said
“Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system .. The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the “conditions” necessary to “ensure the free expression of the opinion of the people in the choice of the legislature.. For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely [42].
This judgment reflects the broader principles set out in the earlier case of Lingens v Austria ([1986] ECHR 7), in which Mr Lingens, a journalist, complained about his criminal conviction in relation to articles he had published about a dispute between Simon Wiesenthal and a former SS officer. The Court considered that the conviction was a disproportionate interference with his Article 10 rights, saying
“Freedom of the press .. affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention” [42]
The position in Europe is fairly clear. The state should apply a higher threshold for interference in political speech at election time than would be applied to freedom of expression in any other context. However, these principles do not seem to be fully reflected in offences such as s.106 of the Representation of the People Act which criminalises knowingly false statements about the character or conduct of candidates, or the Transparency of Lobbying, non party campaigning and Trade Union administration Act 2014 (aka the Gagging Act) which limits certain spending and “lobbying” by third parties in election periods and carries criminal sanctions for breaches.
This mismatch is made worse by the position in relation to social media. Millions of communications are sent online every day. If the existing legislation is taken at face value, criminal offences are being committed by the millions of people who make obscene, menacing, offensive or false comments online every day. This led to the absurd prosecution of Paul Chambers for jokingly threatening to blow up Robin Hood airport for delays (later overturned on appeal) and a consultation by the previous DPP with a view to providing some better guidance for the police and CPS about when to prosecute offences alleged to have been committed via social media.
Following that consultation, he set out categories of communication by way of social media which could engage the criminal law and which should be investigated and may be prosecuted. These are – credible threats of violence, messages which specifically target individuals; messages which are in breach of a Court Order and those which are grossly offensive, indecent obscene or false and breach the Malicious Communications Act 1988 or s127 of the Communications Act 2003. He made it clear that there should be a high threshold for prosecution in the last category, remarking
“Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law.”
The guidance does not specifically mention political context or election based tweeting, but given the growing importance of electronic communications and social media in election campaigns, and the Article 10 principles affirmed by the European Court, the police will need to be very careful indeed in the run up to the European and then national elections. They and the CPS are of course public bodies which are obliged to act compatibly with the Convention. Those engaged with the political process in the run up to the elections are already grappling with the provisions of the “Gagging Act”. Any more visits to political bloggers with requests that they remove comments about politicians and the police could find themselves facing litigation.
According to crime stats UK, there have been 1,154 crimes committed in Cambridge since March 2014, including 169 violent crimes and robberies and 78 burglaries. The Police, and the rest of us, should be grateful that making rude remarks about UKIP is not a criminal offence.
Tamsin Allen is the Head of the Media and Information Law team at Bindmans LLP.