Free speech and prosecution in the age of Twitter

The Crown Prosecution Service (CPS) has decided not to charge Daniel Thomas for posting a homophobic message on Twitter, the social networking site, about the swimmer Tom Daley. The press release, which takes the form of an extended quote from the Director of Public Prosecutions, is fascinating. I have reproduced it in full below.

In short, the CPS has decided not to charge Thomas as he “intended the message to be humorous”, removed it quickly,  didn’t intend it to go beyond his followers (“however naive” that was), has expressed remorse and Daley did not find out about the message until after it had been reported in the media.

The DPP has also used the opportunity to announce that he is drafting new guidance for social media prosecutions and also to say that whilst “serious wrongdoing” could be the subject of prosecutions,

The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

Clearly, the DPP has fundamentally reviewed the position following his loss in the High Court case of Paul Chambers v DPP [2012] EWHC 2157 (our post here) in which a man was prosecuted for tweeting, as a joke, that he intended to blow an airport “sky high” unless it was reopened following adverse weather. Chambers was represented by legal blogger and solicitor David Allen Green. The Lord Chief Justice, quashing the lower court’s conviction, memorably said:

… we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

And

The 2003 [Communications] Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. 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 CPS press release speaks for itself, and rightly raises some important issues for communications law in the age of instantaneous and ubiquitous social media. It also raises the question as to why this position could not have been reached before the CPS’s comprehensive and embarrassing loss in the Chambers case. I expect that it will be a while before another prosecution is brought in respect of a tweet which was intended as a joke. More to come on this fascinating issue.

Keir Starmer QC, the Director of Public Prosecutions, has said:

“On 30 July 2012 Daniel Thomas, a semi-professional footballer, posted a homophobic message on the social networking site, Twitter. This related to the Olympic divers Tom Daley and Peter Waterfield. This became available to his “followers”. Someone else distributed it more widely and it made its way into some media outlets. Mr Thomas was arrested and interviewed. The matter was then referred to CPS Wales to consider whether Mr Thomas should be charged with a criminal offence.

“The Communications Act 2003 makes it an offence to send a communication using a public electronic communications network if that communication is “grossly offensive”. It is now established that posting comments via Twitter constitutes sending a message by means of a public electronic communications network. It is also clear that the offence is committed once the message is sent, irrespective of whether it is received by any intended recipient or anyone else. The question in this case is therefore whether the message posted by Mr Thomas is so grossly offensive as to be criminal and, if so, whether a prosecution is required in the public interest.

“There is no doubt that the message posted by Mr Thomas was offensive and would be regarded as such by reasonable members of society. But the question for the CPS is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made. Context and circumstances are highly relevant and as the European Court of Human Rights observed in the case of Handyside v UK (1976), the right to freedom of expression includes the right to say things or express opinions “…that offend, shock or disturb the state or any sector of the population”.

“The context and circumstances in this case include the following facts and matters:

(a) However misguided, Mr Thomas intended the message to be humorous.

(b) However naïve, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family.

(c) Mr Thomas took reasonably swift action to remove the message.

(d) Mr Thomas has expressed remorse and was, for a period, suspended by his football club.

(e) Neither Mr Daley nor Mr Waterfield were the intended recipients of the message and neither knew of its existence until it was brought to their attention following reports in the media.

“This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield, it was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse. Against that background, the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that on a full analysis of the context and circumstances in which this single message was sent, it was not so grossly offensive that criminal charges need to be brought.

“Before reaching a final decision in this case, Mr Daley and Mr Waterfield were consulted by the CPS and both indicated that they did not think this case needed a prosecution.

“This case is one of a growing number involving the use of social media that the CPS has had to consider. There are likely to be many more. The recent increase in the use of social media has been profound. It is estimated that on Twitter alone there are 340 million messages sent daily. And the context in which this interactive social media dialogue takes place is quite different to the context in which other communications take place. Access to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions.

“Against that background, the CPS has the task of balancing the fundamental right of free speech and the need to prosecute serious wrongdoing on a case by case basis. That often involves very difficult judgment calls and, in the largely unchartered territory of social media, the CPS is proceeding on a case by case basis. In some cases it is clear that a criminal prosecution is the appropriate response to conduct which is complained about, for example where there is a sustained campaign of harassment of an individual, where court orders are flouted or where grossly offensive or threatening remarks are made and maintained. But in many other cases a criminal prosecution will not be the appropriate response. If the fundamental right to free speech is to be respected, the threshold for criminal prosecution has to be a high one and a prosecution has to be required in the public interest.

“To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration. In the first instance, the CPS will draft interim guidelines. There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible.

“But this is not just a matter for prosecutors. Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.”

Comments welcome (nothing grossly offensive please).

12 thoughts on “Free speech and prosecution in the age of Twitter

  1. I am a jew but If you or anyone else wants to call me “a bloody yid” feel free !
    I shan’t call the police and neither should anyone else . Even those sensitive souls that are wounded to the quick by “sound waves”.As long as there is no incitement to violence,we should stop being cry babies wailing because we have been insulted.After all we all have mouths with which to answer back instead of moaning have we not?

    • The “Y” word is a tricky one, there are many perjorative terms for Jews. Is it comparable to the “N” word for blacks? Like it said on a holocaust memorial “Thou shall not be a victim, thou shall not be a perpetrator, thou shall not be a bystander”.

  2. I forgot to mention that when I was young my best friend at college, Anthony was threatened with arrest for his harmless homosexual activities.Now however I would be the one arrested for gently mocking him (as I frequently did).
    I suggest the law was and still is an ASS in both instances !

  3. If cinemas fell within the definition of “a public electronic communications network” I wonder whether Monty Python’s “The Life of Brian” would now be caught under the Communications Act 2003? Certainly, the film caused gross offence to some. To others, the film was very funny.

    I suppose the CPS could establish a humour department to guide its prosecution decisions. Perhaps it should also establish a satire section to investigate complaints from grossly offended recipients of satirical tweets.

    I also wonder whether hateful messages about benefit claimants, which many people may find offensive, will be prosecuted? Or will the CPS enter the political milieu and refrain from prosecution on the ground that such messages are “fair comment” and are in any case in accord with government policy?

    Rather than Komment Macht Frei it grows ever more likely that Komment Macht Prison.

    • Re your ‘Life of Brian’ point, the answer is no, by virtue of s.127(4):

      “Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).”

      So this is for messages only, not broadcasts. Of course, the legislation still does not cope well with social networking services because it re-implements laws first drafted in the 1930s to address obscene phone calls.

      • Thanks Simon.

        I heard Joshua Rozenberg say on the radio this morning that tweeters need to realise they are broadcasting if they are to avoid criminal penalties. Hence my confusion.

        By broadcasting he meant that a tweeted message become available for anyone to see. By way of clarification, he distinguished a tweet from an email the latter being a private communication between the parties.

        I am slightly puzzled why it should be ok to make a film that may grossly offend people but not ok to do the same using social media.

    • Never mind “Life of Brian” what of “Innocence of Muslims”? I saw 2 minutes that an Arab pal sent me. Vile and stupid. At what stage do we say “Thus far and no further”? As to Komment Macht Prison, only when it discomforts the government. Maya Evans gets one week in jail, Animal Rights longer terms than the killers of Baby Peter Connelly. Sick old world.

      • @googzilla

        I take your point about something that is deliberately intended to be vile, offensive and imflamatory. The particular film to which you refer may well tick those boxes.

        I am not sure that any cases prosecuted to date in the UK have met the deliberately imflamatory criterion.

  4. Dear Simon, and Ux, a film may be made that is for “private showing”. I am sure all sorts are made that have limited appeal! As for Twitter one needs to look at jurisdiction. Much is illegal in the UK yet guaranteed in constitutional functioning democracies by free speech. One then has the issue of individual hate (A hates B) versus group hate A hates all Jews, Muslims, Daily Telegraph readers).

  5. Everything has to be put into context, what is offensive to one may not be offensive to another. The problem with social network is that it is written speech which has to be interpreted and disected and brought to life as to precisely what the author had originally intended or in mind- there in lies the problem if beauty is in the eye of the beholder then an interpretation is subjective to the interpreter.

    However, in general freedom speech is a good thing but as Justice Holmes reminded us ‘freedom of speech cannot protect a man who shouts fire across a crowded theatre’. Like life in general everything has to be balanced and viewed objectively. We are not governed any laws and rules but morals.

    • @frednach

      Yes, but shouting fire in a crowded theatre when there is none is not really an example of free speech in the sense of someone expressing an opinion or passing comment on events

      It is the latter that needs protecting, not the right of someone to intentionally cause a stampede, or to incite others to commit crime, or to intentionally imflame a sensitive group knowing full well that the consequences may imperil life or limb.

      I don’t what the solution is to these dilemnas but I am very unconvinced by the CPS’s approach. The Twitter Joke Trial is just one example where I believe they got it badly wrong. The law, or the way it is being interpreted by the CPS, is overly oppressive. Causing offence should not be a crime.

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