Twitter joke trial: Do “offensive” tweeters have freedom of expression rights?

2 December 2010 by Matthew Flinn

In January of this year Paul Chambers used Twitter to express his feelings about the possible closure of Robin Hood Airport due to snow, which he feared would thwart his trip to Belfast to meet his new girlfriend, a fellow twitterer going by the name @Crazycolours.

He said via his @pauljchambers Twitter account:

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!!

The consequences of his tweet were summarised in the Guardian:

A week later, he was arrested at work by five police officers, questioned for eight hours, had his computers and phones seized and was subsequently charged and convicted of causing a “menace” under the Communications Act 2003 .

The specific legislative provision under which Mr. Chambers was charged was section 127 of the Communications Act 2003, which makes it an offence to send “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”. District Judge Jonathan Bennett said that it was “an unusual case”, although he was satisfied the message was of a “menacing nature in the context of the times we live in” and fined him £1,000.

Mr. Chambers appealed to the Crown Court, where it was argued that his tweet was nothing more than “a jest, a joke, a parody” and that Mr. Chambers did not think that it could be seen as menacing.

The court dismissed his appeal. It decided that he had posted a message which was obviously “menacing per se” and that although there was no statutory requirement for anyone to have seen the message, an ordinary person reading it would perceive it in that way. It also said that as an educated man in his mid-20s, Mr. Chambers must at least have been aware that in the current climate of concern about terrorist threats, his message might be taken as menacing – the mental element of the offence (that is, what he was thinking at the time) was therefore also made out.

These decisions have provoked a great deal of debate and commentary, particularly amongst Mr. Chambers’ fellow twitterers, many of whom have expressed concern that their rights to freedom of expression have been undermined by the court’s ruling, and that it will have a chilling effect on a medium of expression in which unfiltered humour and irreverence is common.

Mr. Chambers is now taking his case on appeal to the High Court, and it will be interesting to see the extent of any discussion of his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), and whether or not the application of section 127 to Mr. Chambers’ case is compatible with that right. In DPP v Collins [2006] 1 WLR 2223 Lord Bingham said:

Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.

He therefore concluded that section 127(1), in itself, did not infringe Article 10.

It is possible that the High Court might view Lord Bingham’s conclusion as effectively shutting the door on most of the Article 10 objections that might be made to Mr. Chamber’s conviction. Nevertheless, there may yet be room for arguing that the Magistrates and subsequently the Crown Court breached his Article 10 rights because they should have interpreted the word “menacing”, or perhaps the mens rea requirement, in a more restrictive manner (such an interpretative approach, based on section 3 of the HRA 1998, was used in Connolly v DPP [2008] 1 WLR 276 by Dyson LJ (as he then was) in respect of section 1 of the Malicious Communications Act 1988). Yet it is also possible that the court would prefer to approach this issue simply as a challenge to the finding of fact that, in all the circumstances, Mr. Chambers’ Tweet was menacing.

Even if the court concluded that there was no breach of Article 10 in the application of section 127 to the circumstances in Mr. Chambers’ case, there would still be a breach if it was convinced that the sanction was excessive. ECHR case law has established that even where criminal prosecution is justified in principle, a disproportionate sentence may result in a breach of Article 10 (Sener v Turkey (2003) 37 EHRR 34), and that the justification for any criminal sanction must be “convincingly established” (Sunday Times v UK (No. 2) 14 EHRR 229). It might be argued that a £1000 fine was excessive in circumstances where Mr. Chambers did not intend the tweet to be menacing, and where it was established by evidence that it was not taken by airport staff as presenting a credible threat. On the other hand, it is also arguable that Mr. Chambers’ tweet was of an inherently serious nature, and potentially extremely disruptive, and that his fine was not disproportionately severe in a context where imprisonment was possible. In any event, it seems that it was the fact of conviction, rather than the fine, which has aroused so much passion and interest.

One of the most interesting questions on appeal may not relate to Article 10 rights at all. Mr. Chambers’ solicitor informed the BBC that one of the issues they wanted to explore was “whether or not Paul’s message was sent by means of a public electronic communications network”. This is presumably related to the emphasis placed by Lord Bingham in Collins on the purpose of section 127 as being to prohibit the use of a service “provided and funded by the public for the benefit of the public transmission of communications which contravene the basic standards of our society”. In Mr. Chambers’ case, the courts have appeared to accept a non-private posting on Twitter as constituting the use of a “public electronic communications network”. It is not clear that Twitter is “public” in the way envisaged by Lord Bingham, and on this basis it may be that Mr. Chambers’ tweet did not come within the scope of the section at all.

It is to be hoped that all of these issues will be given due consideration in the High Court. Irrespective of the merits (or lack thereof) of Mr. Chambers’ ill-fated tweet, the attention this case has received is amply justified. After all, as he House of Lords observed in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, freedom of expression is a right without “an effective rule of law is not possible”.

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