May 10 2022

Not funny

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Not funny

How many of us when posting messages to twitter or Facebook ever stop to think where those messages may end up, or who they might be seen by? Paul Chambers certainly didn’t when he tweeted his frustration at potentially not being able to fly from Robin Hood airport to visit his girlfriend in January 2010.

An off duty airport security manager happened upon his tweet (‘Crap, Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!’) a couple of days later. The manager didn’t think it was a serious threat, but was duty bound to pass it on to his manager, who then in turn passed it on to South Yorkshire police.

Paul Chambers was arrested, his phone and computer equipment seized, and he was carted off to the police station to be interviewed. He told the police, as was plainly obvious to anyone who has ever seen it, that his tweet was meant as a joke. Not a threat, not to be taken seriously, simply a not terribly funny joke. The police tended to agree with him. The officer in charge of the case assessed the evidence as ‘nothing other than a foolish comment posted on twitter as a joke for only his friends to see’.

However, just to be on the safe side the papers on the investigation were sent to the Crown Prosecution Service for them to consider whether Chambers ought to be prosecuted. The CPS decided he should. He was charged with an offence under the Communications Act 2003, section 127, – in other words, he sent by means of a public communications network, a message of a menacing character.

Now, many people might assume that a joke message could never be menacing if it wasn’t intended to be by it’s sender – otherwise you would have to put everything you ever wrote through a filter. You would have to think every tweet, every Facebook posting through to it’s ultimate conclusion and think really hard if someone, somewhere might find it a bit scary, possibly.

Although in fact it’s not even necessary under this offence for the message to actually be seen by anyone. There’s another arm to this offence – that of sending a message which is grossly offensive, or obscene – and the test for this is at a much higher level than the one that appears to be the current level for ‘menacing’. The stated purpose behind s.127 is to ‘prohibit the use of a service for the transmission of communications which contravenes the basic standards of our society’. Compare that rightly lofty ideal with what the judge who upheld Chamber’s conviction said about his tweet. ‘We are satisfied that the message is obviously menacing. It is difficult to imagine anything more clear. It fits the OED description. We take the view that an ordinary person would see it and be alarmed.’

Really? Take another look at the wording of the tweet, bearing in mind of course that he wanted the airport to be open, he wanted to travel to see his girlfriend. So even if we stretch our imaginations like Stretch Armstrong on a stretchy day, we then have to consider the ‘proportionality’ aspect to this dreadful crime (was it a proportionate response to what Chambers did, to arrest and prosecute and convict him of that crime).

The answer to that must be ‘No’, not to mention the sheer costs involved to the public purse in exercising this folly. Those in favour of not criminalising that twitter joke say that it was an interference with Chamber’s right to freedom of speech to prosecute him for it. The prosecution says it was a necessary interference in order to uphold the interests of national security and public safety. I repeat. It was a joke. The Director of Public Prosecution’s assertion that it was necessary to prosecute in order to send out a ‘deterrent’ message against such unwarranted foolishness fell a bit flat when over 4,000 people re-tweeted it in a campaign called ‘I am Spartacus’.

Apparently it’s now been retweeted over 18,000 times. I think the legal term for that is ‘Epic Fail’. Chamber’s conviction was appealed in the High Court on Wednesday but the judges have yet to publish their decision. Much will depend upon it. If the conviction is not overturned the freedom of speech of everyone using social media will be curtailed. You won’t be able to make a bad joke for fear that someone, somewhere might see it and decide to report you to the Authorities and you’ll be arrested. Doesn’t sound like England, does it? And it’s just another example of society and it’s methods of communicating evolving at a faster pace than the law can keep up with. Sadly, for people such as Paul Chambers the law acts in a shoot first ask questions later kind of way.

For the avoidance of doubt, this post is not intended to scare anyone anywhere. Ever.

5 responses to “Not funny”

  1. Richard Dunstan says:

    Fabulous piece!

  2. David Foley says:

    We also have to consider the implications of ignoring missives from someone at an airport who makes the statement: “I’m blowing the airport sky high”. There has surely been sufficient publicity in the last few years to deter any reasonable adult from making jests about terrorist actions relating to aviation. If the behaviour of Paul Chambers were simply to be accepted as playful repartee, it would not only create a defence for a future bomber, but it would make the job of protecting the large number of airline passengers in the UK more difficult. David Foley, Thanet & East Kent Chamber.

  3. Anonymous says:

    This crime reminds me of the contempt of court legislation where the test is intention to publish rather than intention to prejudice proceedings.

    People don’t like the no intent crimes of strict liability – but they have their place. We don’t care why you were speeding – you were and you are liable.

    As s127 is strict liability, and it’s clear to me Parliament wanted it to be strict liability – I don’t see where any qualified Article 10 argument is going to take this case – when 10.2 gives nations the right to curb such expression for public safety and security.

    Surely, electronic communications in airports re bombs fits the strict liability bill. Sorry, kid, try not be so stupid next time you’re delayed at an airport.

    Everyone seems to have forgotten the 10.2 “freedom comes with responsibilities” qualification – and that there is no “joke” defence in law provided. Hence, why we weren’t laughing at this or at the person yelling “fire” in a crowded theatre.

    I’m not conviced by the “public purse” disproportionate argument either. Criminal justice isn’t about economics – it’s about the Rule of Law and our society. Otherwise, who would be prosecuted for shoplifting?

    While I don’t know if the Judges will be with me on this, I suspect they will find it difficult to effectively over-rule Parliament.

    Finally, I’ve heard people say the Malicious Communications Act is some unknown and unused piece of legislation that should be ignored. Bloggers will remember Rachel North’s stalker being prosecuted under it. It must be right that “menancing” is in the eye of the ordinary beholder – not the sender.

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