Public insults to be legalised but grossly offensive messages still criminal

15 January 2013 by Adam Wagner

Section 5 of the Public Order Act 1986, which outlaws the use of “threatening, abusive or insulting words or behaviour” will be amended to remove the word ‘insulting’. The amendment is the result of a successful, high-profile campaign which asked “Do we really need the police and the courts to deal with insults?“

That campaign, supported by major organisations and many MPs, prompted a successful House of Lords vote to amend the wording in December. That vote was supported by the Crown Prosecution Service, with Director Keir Starmer writing that his organisation was “unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting“. The Home Secretary has now, rather grudgingly, said she will not oppose amendment.

So, we will be able to insult in public. But thanks to section 127 the Communications Act 2003, it is still up to the police and the courts to decide whether we have sent grossly offensive messages on Facebook, Twitter and in practically any other communications medium. As I have argued before, this law was designed to prevent malicious telephone calls long before the entire world began messaging each other in public over social media. Like the ‘insulting’ ban in the Public Order Act, this has become a high impediment to free speech and urgently needs reform.

The Crown Prosecution Service has done a reasonable job with its new prosecution guidelines. But there is still a significant potential for abuse, with people being hauled in front of local magistrates  and pleading guilty before anyone finds out. Last year there were almost 5,000 reports and 653 people charged for ‘social media offences‘, a huge increase. But ‘social media offences’ are poorly defined and it appears that nobody  is keeping track of offences affecting free speech.

Just like the campaigners pointed out about section 5 POA, there  have been a number of worrying prosecutions under s127, including some for stupid, offensive jokes made on Twitter and Facebook, intended for small audiences. Worryingly, many successful prosecutions have been against adolescents who had no idea that their stupid jokes could lead to prison sentences.

There are three key questions in this debate. First, do we really want police and judges deciding which jokes, throwaway comments and idiotic off-the-cuff remarks are ‘grossly offensive’? Secondly, is there a single conviction under this law which has made society a safer, better place without unduly impinging on free speech? Thirdly, does s.127 add anything to the already existing criminal protections against harassment and stalking?

In my view, the answers to all three questions is ‘no’. Section 127 outlawing grossly offensive communications is an out of date, bad law which impinges on freedom of speech. Like its ‘insulting’ cousin under section 5 of the Public Order Act, it needs to be reformed.

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Read more:

• New prosecution guidance on offensive speech online: sensible, but the law is still out of date
• Law in Action on social media prosecutions
• Twelve weeks in prison for sick jokes on Facebook? Really?
• Free speech and prosecution in the age of Twitter