UKC

We'd all been wondering where Niggle had gone these days, well he's obviously been locked up. For niggling! Did you know that it is a criminal offence if someone "for the purpose of causing annoyance ... persistently makes use of a public electronic communications network". And you can get six months in the slammer for it.

Yes really, it is and you can. Under the Communications Act 2003 Section 127, merely causing "annoyance" is sufficient to make you a criminal! Concise OED: "annoy" = "make slightly angry". **Slightly** Heck, I've just realised that I may be a habitual criminal.

And if you say something that you "know to be false" for the purpose of "causing annoyance" (aka trolling), then that's also criminal. So trolling on UKC is actually criminal, if anyone is at all "annoyed".

In several threads I've gone after Section 5 of the Public Order Acts, with their restrictive prohibitions on speech that someone finds a little upsetting, but now I discover that there is a far worse law. This one is utterly, utterly ludicrous.

What the heck were Parliament thinking? Vast swathes of the internet involves "persistent use" of a "public electronic communications network" that may make someone "slightly angry". We need to repeal these laws and declare internet sites such as Facebook and Twitter etc to be "free speech" zones where you might encounter something you find upsetting, annoying or offensive.

Here is the wording of this bizarre law: http://www.legislation.gov.uk/ukpga/2003/21/section/127

And some examples of how it is being applied:
http://www.independent.co.uk/voices/comment/azhar-ahmed-a-tasteless-faceboo...

http://www.independent.co.uk/news/uk/crime/teenager-jailed-over-offensive-a...

In reply to Coel Hellier:

Have to admit i've been wondering where we're heading with things posted online and sentences being given for them.

In reply to Coel Hellier:

Facebook and Twitter sentences: Are judges out of touch with social media?
http://www.bbc.co.uk/news/uk-19882618

In reply to Coel Hellier:

I feel a crimewave coming on - You're all fat ugly ladies! except the ladies who are all obviously fat ugly men! - not a master criminal, but it's a start!

In reply to PeterM:

That's seriously annoying and it has angered me. You crim.

In reply to JH74: Comments similar to the one the person made who was sentenced, about soldiers going to hell, are made on here and other forums quite often it seems to me.

In reply to Coel Hellier:

But I'd say its wrong to use these media for (for example) organising riots. Not read the act, but it needs to be worded carefully so I can express opinions that some might find offensive, but can't organise criminal activity

Y.

In reply to Coel Hellier:


Yes. Good spot, coel

It's impossible to see how this could be applied consistently, or nearly everybody, including most MPs, would be guilty of offenses. Anything that needs to be applied so selectively is ripe for misuse. It would appear that it is being used to get at whoever is the tabloids' villain of the day.

Given it is their day job, why is it that MPs appear to be so very bad at wording legislation?

Cheers
Gregor

In reply to Coel Hellier: Has no one here read The Stainless Steel Rat????

THAT is where we're headed.

In reply to Coel Hellier:

I seem to remember George Monbiot going on at some length about this, when the law was first introduced.

In reply to Coel Hellier:

Coel, trolling again ?

The first case hinged on whether the words used were "grossly offensive" as the prosecution alleged or just "offensive" as the defendant claimed. Personally - given the alleged remorse, the removal of the comments and the apology (presuming this was prior to police involvement) I think the sentence was quite heavy but I'm also surprised at the decision by CPS that it was grossly offensive, though the magistrates appear to have agreed.

The second case we don't know what the comments were as the full extent has not been published. Similarly from the reports, though it is not clear, it appears they were repeated, persistent and the poster wad aware of the reaction by other people tp what he was posting.

It comes back to where a line should be drawn about offensive language/comments - where I understand your position to be that all language/comments should be allowed unless the victim is put in fear of violence. Not sure where you stand about distress to recently bereaved families, or indeed totally innocent people midinf their own business who are subject to abuse.

My general view is that behaviour that would be unacceptable in public in the hearing and sight of those who are upset doesn't magically becomemore acceptable on the internet - though obviously the context of where it is posted, to whom it is addressed and accessible, and the relevant privacy settings all have some bearing.

I look forward to the consultation and guidance from the DPP which I suspect will be heavily influenced by the very liberal and vociferous twitterati.

In reply to Coel Hellier:

Someone will be along shorty to point out that we can trust the police to exercise discretion and no-one need to be worried about being prosecuted for annoying someone on the internet.

One way of heading towards a police state is to create laws that criminalise *everybody*, so therefore anyone you like can be locked up whenever you wish.

In reply to Off-Duty:

Ah, I appear to be right..

In reply to no_more_scotch_eggs:


Because the average MP has remarkably little to do with drafting laws, or effectively scrutinising them, nor is parliament as a whole an effective check on the executive, still less on the dictatorial powers of the EU.

They are largely party placemen/women, who could be more or less dispensed with, so that the party leaders/whips could just be allocated 50, 100 or whatever number of votes, as the sheep can be relied on to chant "four legs good, two legs bad" to order - or go through the relevant lobbies. The number of genuine mavericks in parliament has fallen drastically as the power and esteem in which parliament is held has dropped in parallel.

In reply to Coel Hellier:

In all seriousness teh two examples you cite are quite embarassing really. Hard to believe that these warranted jail time considering what some get 'community service' fines and tagging for. Jailed for voicing an opinion however odd or tasteless (in my opinion) is the start of a very slippery slope. Thought crime anyone?

In reply to no_more_scotch_eggs:


Although isn't most legislation worded by civil servants with legal backgrounds?

In reply to PeterM:

From what I understand in one of the cases a third party took a screen print of someone's facebook wall and posted it on an 'in memory' type page. If the law is about intent to cause distress the third party seems just as guilty in this case.

In reply to Coel Hellier and Simon

Yes, you are both in all probability right....

Constitutional reform, so that MPs are 'fit for purpose', anyone...?

Cheers
Gregor

In reply to Coel Hellier: When you look at that gov link, PC Savage's trumped-up charges of "Possessing an offensive wife" and "wearing a loud shirt in a built up area during the hours of darkness" don't seem too far fetched nowadays!

In reply to off-duty:


Absolutely, habitual criminal me! I must have "annoyed" some people here on occasion.


Yes.


I would accept such speech as criminal if it involved approaching someone on the street, telephoning them directly, repeatedly sending messages to their private email address, etc -- in other words anything specifically targeted at a person that they would then find hard to avoid. And I'd criminalise this under a law about "harassment" in general, rather than abusive language specifically.

I would not criminalise offensive comments in the public domain generally (twitter, facebook, newspapers, etc). People can choose not to use them, or to use the privacy settings as appropriate, if they don't like what they encounter there.

In reply to ebygomm:

The post should've been removed and the user/poster blocked (and/or some other punitive measure like banned from Facebook or wherever), but jail time?

In reply to Yrmenlaf:


Couldn't we just criminalise the activity of "organising riots", and not specify whether that involves twitter, mobile phones, or whatever?

In reply to Coel Hellier:


I think we all have. And now Off-duty has spotted this thread. Mass arrests due shortly I think...

In reply to John_Hat:

Absolutely, where "right" is interpreted as reading into my post whatever you particularly wish to disagree with.

In reply to Coel Hellier: "niggling is a criminal offence"

Its just as well 'nagging' isn't, as wor lass would be doing a 10 stretch!!

In reply to Coel Hellier:

Could one expect a term if similar thoughts were expressed about the Taliban fighters as were expressed about the British soldiers? I somehow doubt it.

In reply to Yrmenlaf:
what about all the fake riots you dress up for at the weekend?

In reply to PeterM: The real equivalent would be to consider what would happen to a westerner living in Taliban controlled Afghanistan who made similar comments about Taliban fighters. Any guesses?

In reply to PeterM:

I think we are well down the slippery slope not at the start. Unfortunately it is far too late to do anything about it.

In reply to Coel Hellier:

Good point

Y.

In reply to BigBrother:

I'd have to disagree as we're talking about UK Law. The point I was trying to make was that what can be found offensive is so subjective as to make that case in particular laughable. It seems that he's punished for expressing an opinion that is just not 'in line' with the majority, and I find that a very dangerous precedent. I personally did not find what he said offensive. Immature and provocative yes, but offensive, no. Some people seem to love being offended and outraged.

In reply to Coel Hellier:

You're right of course, this law is bonkers.

I don't think it's fair to blame the drafting, though. Our laws are quite badly drafted for various reasons, the most important being that drafting legislation accurately is actually an extremely difficult task. However, the present provisions seem to reflect the intentions of the legislature well enough. The trouble is that the legislature's intentions were moronic.

As usual the common law had evolved a much more nuanced, pragmatic and sensible position. If people wanted to favour the relatives of murdered five-year-olds with their vile opinions, nothing prevented them from doing so, *as long as it wasn't likely to cause a breach of the peace*. Which is as it should be. If inadequates want to go on facebook and say stupid things, we should ignore them. People should not have a legal right not to hear other people say vile things about them, but people should have a right to go about the place in peace without fights breaking out because of it.

Then our legislators got involved and tried to respond to some of the public's more stupid concerns, with the results that we see.

I read an entertaining book called 'Wasting Police Time' a while ago, probably written by off-duty. According to that the police in Leicester (or somewhere like that) spend 95% of their time investigating whether or not abusive text messages sent by drunken members of the proletariat to each other did or did not constitute offences under this legislation or some fatuous relative of it.

jcm

In reply to no_more_scotch_eggs:


You'd have to abolish/severely curtail all political parties to achieve that. Mind, seeing they are all more or less dying on their feet, that probably would be

a) un-necessary
b) not much of a loss

In reply to off-duty:

When are you going to change you're moniker to on-duty?

D

In reply to Coel Hellier: In some cases ive got no problem with it. If some oik thinks its funny to post the stuff like on the april jones facebook page then 12 weeks in the slammer is fine by me. Its the price he pays for utter stupidity. Likewise the recent racist tweets.
The jokes in themselves dont especially bother me, more that they are posted somewhere where a relative can easily see them.
Its just spite for spites sake, there just seems so little point to it.

That stuff is a world apart from the kind of nonsense we often get on here though and I agree that this legislation can be used in useless and pointless circumstances, such as the guy who tweeted about bombing robin hood airport etc

In reply to fxceltic: similarly you have recent legislation to prevent protest outside the house of parliament, on the basis of terror threats, where the law has been subverted solely to suit politicians who dont want to have to answer to proletariat concerns (I might add that a lot of this stuff came about under Labour not, as you might think, the Tories).

In reply to Dauphin:

If I get caught posting at work

In reply to fxceltic: if anyone is interested in finding out more about the gradual erosion of our rights to speak freely/ protest/ democracy etc then this is an interesting read.

http://www.amazon.co.uk/I-Fought-Law-Dan-Kieran/dp/0553817701

In reply to fxceltic:

I take the opposite view. People posting stuff that actually has real-world inconvenience needs to be stopped (whether the airport stuff was so obviously a joke that it shouldn't have cause real-world inconvenience is another matter).

On the other hand, knobheads posting April Jones jokes really isn't something the law should be concerning itself with.

jcm

In reply to johncoxmysteriously: on some practical level I do agree with you, but I cant say I dont find it slightly gratifying/ amusing that such a tit finds himself behind bars for a few weeks as a result of his idiocy.

In reply to fxceltic: Do you build prisons for a living?

In reply to fxceltic:


I don't think that idiocy is something that someone should be locked up for. For one thing, locking someone up for 12 weeks is going to cost, what?, perhaps £20,000 at least? And suppose it costs them their job or makes it harder for them to get work, then it could cost the taxpayer tens of thousands more in benefits over the succeeding years. Sorry, I don't like this idea.

As for the "relatives might see it" argument, well it seems in these cases that it is everyone else, third parties re-tweeting and publicising, and media making a big deal about it, who are desperate to ensure that everyone, including the relatives, get to hear about it. Thus, the fact that it is a criminal offence greatly increases the likelihood of people (including relatives) being offended.

In reply to Sir Chasm: no money in it any more mate.

In reply to Coel Hellier: "on some practical level I do agree with you" was my opening gambit in response

In reply to fxceltic: There soon will be if we're going to lock people up for gobbing off on the internet.

In reply to fxceltic:


Yeah, but you also said that 12 weeks in the slammer was ok with you.

Let's examine the offence a bit more, if reports are correct what he did was post sick jokes on his own facebook page. So they'd only be seen by anyone who had "friended" this person, or specifically chose to look at his facebook page. In other words, the chances of any family seeing this are near zero. That is all *he* did; he didn't ask anyone to re-post this stuff anywhere else.

Given that, 12 weeks jail costing tens of thousands of pounds is ludicrous. He's also unemployed, and with the job market like it is that jail term will likely mean he won't get employment any time soon (most cost to the taxpayer).

So, the enjoyment you get over this idiot being punished is, it seems to me, inappropriate.

In reply to Coel Hellier: Do you have any examples of clause 2), which seems the more absurd part of the legislation, being used?

In reply to MG:

I don't know of any.

In reply to Coel Hellier:

I tend to agree with you(if those are the circs), except for the fact that provided his profile was "open" they could be seen by anyone looking (!!) for them. I wonder if he might have suffered from not-so-well-informed defence briefs and magistrates.
I am fairly confident that the accessibility, privacy settings and similar of a post will be significant factors in the decision to prosecute when the DPP formulates his guidelines.

Only one other strawman which is that the cost of punishment should not necessarily influence the decision to impose it. After all a .22 cartridge costs less that 50p .....

In reply to off-duty:


But if someone searches the net looking for stuff that might offend them then they'll find it. This is where I'd draw the line: putting something into the public domain were someone might stumble across it -- acceptable; deliberately targeting or harassing someone -- unacceptable.

And things like in-memoriam webpages can be moderated, surely? It's widely accepted that if you want a "safe" website then you moderate it. Similarly with twitter and facebook, you need only "follow" or "friend" friends or source that you want to follow.

So, overall I'm sticking to my above position that only threats of violence, or stalking and harassing, should be criminalised. In places like America they don't have this sort of law outlawing mere offensive speech (owing to their 1st Amendment), and I don't see that they're any the worse for it.

In reply to Coel Hellier:

the flip side of this might be that as a result less people post idiotic sick jokes on line and the cost of the 12 weeks results in a benefit to society of it becoming a slightly nicer place as a result.

This is optimistic I realise. I also realise that some may point to law not being a deterrent in many situations, but I would say that in many of those cases where the deterrent doesnt work its because the stakes are higher eg someone has to thieve to eat and theyre desperate, but nobody has to post thick jokes online for any reason.

I was also under the impression that the guy had posted on the open "rip april jones" facebook page, as opposed to just their own facebook page, that may be wrong though.

I'd be happy enough if, rather than a custodial sentence, it was made legal to give him a slap instead, live on TV in an ad break in between X-Factor segments. This would have the advantages of being cheaper (contractually paid for by X factor text messages), targeted at many of the people that post this sort of toss, and could be administered by someone relevant to the situation.

In reply to fxceltic: I must say these two cases have made me very uneasy. People have always made vile, offensive jokes about stuff - putting people in jail for it seems completely inappropriate. As JCM says unless it's going to cause a breach of the peace, whilst it's the act of an utter nob, it surely doesn't require the police to get involved.

And the guy who posted something about soldiers had used some moderately inflammatory language,but he did preface it with the words "the Taliban are your enemy, not the people of Afghanistan" or something similar. On the local news they were positioning it that he had been arrested because he posted it the day after six local soldiers were killed in a roadside bomb.

It's the slippery end of the wedge.

In reply to andy:

this is true, but I think that in the past the law didnt intervene because it was basically accepted that if someone stepped out of line then you could give them a slap without too much legal comeback.
Thats now legislated against so you need another way to deal with it. Unfortunately it seems that means more legislation.

Im still going with my X factor idea.

In reply to Coel Hellier:

Yes, I agree. It does smack a bit of people actively searching for something in order to be offended by it.


I see where you are coming from, but posting grossly offensive comments on a memorial website (regardless of the ability to moderate them off) is still a very deliberate and provocative action, clearly with an intent to cause some level of reaction in the reader. Clearly when the moderator logs on it can be deleted but the action has been
completed.

In a slightly contradictory manner, posting abuse on each others personal facebook pages can often be best dealt with by deleting the message and blocking the "friend". The difference as I see it being that deliberately posting where it can cause most offence eg a memorial site, is affecting a much larger group of people.



Here (as usual) we are going to have to disagree...

In reply to Coel Hellier: IIRC none of this is particularly new - similar legislation was in place in the 80s but aimed at poison pen letters/stalkers and the like. The 2003 Communications Act was just an update to existing legislation.

I agree with your general point though.

In reply to MJH:

>The 2003 Communications Act was just an update to existing legislation.

I'm not sure that's right, though I'm no expert. I have the impression it went a bit further.

I'm not sure how the April Jones fellow could have been done for 'persistently' doing anything, mind.

After all, someone - quite a few people - posted some Jimmy Savile jokes on here. That's not a far cry from April Jones jokes; I know she's dead (probably), whereas JS' victims are merely a bit damaged (probably), but to hear some people talk you'd think there wasn't so much difference. I'm sure there'd be some people ready to be grossly offended by a Savile sick-jokes thread, so were we all criminals?

jcm

In reply to johncoxmysteriously: One assumes Abu Hamza bacon/hook/soap in the shower jokes are ok because he's horrid and foreign. I imagine Mrs Hamza could say she's quite offended though.

In reply to off-duty:


I'm unclear whether the person in question in this case did this (as oppose to others re-posting his "jokes").


It's common to have moderation systems where things only appear once checked by a moderator, as used on many sensitive websites, and I'd suggest this should be the default for a commemoration page for a recently murdered child. This would seem a far better solution than involving the criminal law.

In reply to johncoxmysteriously:


The "persistently" only applies to the second paragraph, about being "annoying", not to the first paragraph, about being "grossly offensive".

In reply to Timmd:

Are they? - I'd like you to point them out.

Having said that I wouldn't be surprised if some UKC'ers were upset by some anti-taliban - abu hamza comments.

E

In reply to Enty:...and other forums, you missed that bit out.

It's quite a while since i've seen anything as bad as that actually now you ask, but there have been in the past.

Maybe the moderation's changed and it's not registered with me untill now.

In reply to Coel Hellier:

Yes I don't know either.


Facebook memorial sites don't have that facility I don't think. Placing the onus on the victims family/moderator to not be offended by moderating the site in advance, as opposed to placing the responsibility on the troll to act like a decent human being - seems to be both unfair and back to front.

I suppose an analogy might be to a troll wandering up to a grave and scrawling obscene comments on it in chalk - then blaming the family that put up the gravestone for allowing public access.

In reply to Timmd:

Maybe taking a blowtorch to a burglar )

E

In reply to off-duty:

Maybe the UK just adopt the fist amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Politicians in the UK just love to legislate crap that breaks the 1st amendment.

Extreme statements happen in the US, were people can say anything, but no one really cares. It is just background noise. Why is someones opinion such a big deal the UK? Even if the opinion is crazy or misinformed, why would anyone care?

In reply to Coel Hellier:


I would go even further and say that harassing is far too vague a concept to be the basis of a criminal offence. Stalking is a bit of a borderline, and should certainly be subject to as many tests of seriousness, fear, etc as can be applied. All this stuff about distress, offence, alarm, inconvenience etc should just be given the heave-ho.

One of the things that is guaranteed about all these vague, "send a message" laws is that they will be applied incredibly inconsistently, as fashion or the current witch-hunt dictates. So there are bound to be all sorts of anomalies in individual cases, which achieve very little and just bring the law into disrepute. As well as providing some sort of legal basis for a mob-based hue and cry.

Away with them all - if you incite violence, murder, etc, i.e. real crimes (but not including hatred - no reason you shouldn't hate someone or some group, as long as you don't do anything violent about it, or incite violence), you should go down. Otherwise you are just being a tasteless arse and everyone should grow a thicker skin, and treat you with the contempt you deserve.

In reply to Simon4:
Hmm, agree with all your further points but not sure about this. Repeated abusive phone calls, as an example, strike me as something that should banned as harassment. Such behaviour is not too difficult to define.

In reply to Coel Hellier:
Does this mean I can bring a criminal prosecution against Eric Pickles as he seriously pisses me off sometimes

In reply to Simon4:


I agree that it would need defining in any legislation.

In reply to Duncan Bourne:
seriously though this does put us into tricky territory.
Say Coel's penchant for highlighting the short falls of religion were to be considered annoying. Where does that leave free speech and the right to be critical?

In reply to off-duty:


But being a dick and departing from "decent human being" manners is quite a bit different from being criminal. The whole point of an open and unmoderated internet site is that anyone can post to it -- if those setting it up don't like that then they should make it a moderated site (and facebook could easily do this if there was user demand). I don't see it as unreasonable that someone setting up such a page would take responsibility for that.

Accepting this as a fact of life and of human nature seems to me better than trying to police offensive language on internet sites by using the criminal law. Also, any of our laws on this stop at the boundaries of the UK, if someone had posted the same remarks from the USA then no offence would have been committed.


But writing on property (graffiti etc) is considered criminal damage in its own right, in a way that posting on internet forums is not.

In reply to Coel Hellier: http:...

Interesting blog comparing a guy being jailed for posting unpleasant and offensive stuff about April Jones with Justin Lee Collins who gets 140hrs community service for assaulting and victimising his partner.

In reply to Coel Hellier:

So in essence, you are agreeing that the responsibility of avoiding offensive behaviour falls on the recipient rather than the offender.
If they choose an environment where they can be abused, essentially it is their own fault.


We are just going over old ground here - you believe that free speech should include the ability to be grossly offensive, I don't.



Yes, a poor analogy perhaps. How about the troll walking up to the funeral party and being grossly offensive, with the responsibility/blame being on the funeral party for not having held it in public.

In reply to andy:

I am sure I can find examples of sentencing equally disproportionate for different offences as well.
The argument is a strawman - disagreeing with the sentence is entirely separate to disagreeing with whether the offence should be criminal or not.

In reply to off-duty:

>How about the troll walking up to the funeral party and being grossly offensive, with the responsibility/blame being on the funeral party for not having held it in public.

Behaviour likely to cause a breach of the peace, innit?

jcm

In reply to johncoxmysteriously:

Wait a minute - you are breaching my right to freedom of speech by arresting me. I demand you arrest the funeral party. THEY are the ones threatening ME ...

In reply to off-duty:


Of rather that I don't see insults and giving offence as criminal. I should be able to call a poster here an idiot or a plonker without fearing criminal charges.


Yes, in the sense that there are plenty of internet sites where vitriol and insults are par for the course. If I don't like that then I don't go and read them.


The trouble with that is that "grossly offensive" is so subjective, and also there can be a public interest in speech even if it is grossly offensive.

Suppose a member of Jimmy Saville's family declared that they were "grossly offended" by the slurs on his name -- would that make such accusations criminal? How about a politician being "grossly offended" by the suggestion that they were involved with fraud? How about someone arguing that Jesus was gay, or that Mohammed didn't actually exist, or suppose someone says that scientology is a dangerous cult -- can one silence any such talk by claiming to be "grossly offended"?


I think that ceremonies in public should have protection, so I'm content with a law against disrupting a wedding or a war memorial event or whatever. JCM suggests that breach of the peace covers this.

But disrupting someone else's event is very different from the general principle of allowing free speech. For example, in the US there are laws prohibiting Fred Phelps from picketing the funerals of soldiers, but the restriction only covers a very limited location for a very limited time, and so seems to me consistent with the principle of free speech.

For the reasons relating to my examples above, I consider free speech to be too valuable to allow the state to punish people for merely being "offensive".

In reply to Coel Hellier:

I don't see much point in rehashing the same old arguments, you believe that the right to free speech should trump (almost) all offence, my threshold is slightly lower.

Kier Starmer the DPP has discussed how the upcoming review of offensive posting on the internet has to lie within our existing framework of law including grossly offensive behaviour etc.
What I think is interesting is that when dealing with offences in public it is very difficult to make a case that the law is not being routinely applied in a prety fair and reasonably consistent anner, with an objective view of behaviour. You can (and do argue that the letter of the law criminalizes free speech but the practical application of the law appears to be pretty fair.
However when people go online it appears both that the "decent" standard of behaviour appears to go out of the window and due to the permanent and rapidly reproducible nature of comments their effects are much more widespread and can impact more than an inappropriate comment at an inappropriate moment.

I am not convinced that the best solution to that behaviour is simply to ignore it, but I come from a viewpoint that I am reasonably happy with our current laws on free speech.
Your position that you disagree with the current law on general means it is not surprising that you will disagree with it's application on the internet.

In reply to off-duty:


How about this one (quoting from another thread). I bet I could easily find people offended by it, so is it "offensive" and should be criminal or "offensive" and should not be criminal?

http://www.jesusandmo.net/2005/11/28/mary/

In reply to off-duty:
>


there are laws against behaving offensively....really? There are laws against lots of things so it is not very surprising but the term "offensive behaviour" seems rather vague.

I don't think it should be criminal behaviour to say somebody is going to hell because they are soldiers, gays, non-believers, having sex outside of marriage or whatever. That level of offensiveness isn't enough to justify criminalising the expression of somebody's religious (or non-religious) beliefs.

In reply to Coel Hellier:

I certainly don't think it crosses into criminality. I am confident that no objective viewer would consider it "grossly offensive" either. The comments made following the final appeal in the Twitter joke trial (which unfortunately I don't have to hand) gave an indication of the way that the judge there felt that free speech should be interpreted and I believe mentioned satire and similar humour.

Improved guidelines would hopefully be useful. For example posting this cartoon on to some very Christian website knowing it would offend and doing it to create a problem might be moving towards a criminal act by the poster.

In reply to off-duty:


I'd suggest that you could find Muslims who regard it as "grossly offensive". After all, the Danish cartoons were mostly much more innocuous than that one, and led to riots and deaths.

For comparison, the "jokes" about April Jones that were deemed "grossly offensive" and led to a 12-week jail sentence included things like "Who in their right mind would abduct a ginger kid?". Very tasteless, certainly, but I don't see an "objective" argument that says that is vastly worse than the above cartoon. (For more on what he wrote see the link in the OP)

In reply to Coel Hellier:

Well, yes and similarly the YouTube video posted in that bastion of free speech the USA caused riots and killings throughout the middle East. I didn't think th consequences in other countries was a particular consideration for forming law in Denmark, the US or the UK.



We know some of what was posted but there are a number of other comments alluded to but not repeated in any report I have seen that suggest he went a lot further

In reply to Coel Hellier:

Offensive, but 4 months? You can kill someone in your car accidentally, actually take a life and not get that:
http://www.bbc.co.uk/news/uk-england-manchester-19911943

In reply to off-duty:


Perhaps he did and perhaps he didn't, but I think that if we're to have public confidence in the system and the law then we the public should know what sort of thing gets you a 12-week jail sentence.

At the moment, I think we're entitled to presume that the published remarks are the gist of it. It also seems that he only posted these on his own facebook site (and did not deliberately target any in-memorium site).

For example "The court was told Woods's Facebook page was available to a large number of people." ( http://www.guardian.co.uk/uk/2012/oct/08/april-jones-matthew-woods-jailed ) which implies that it was his own page.

And the "jokes" we're told are of the order: "Who in their right mind would abduct a ginger kid?" and "Could have just started the greatest Facebook argument EVER. April fools, who wants Maddie? I love April Jones."

To me that falls well, well short of anything criminal (especially being only on his own facebook site, which no-one would read unless they were actively seeking him out), and yet the "chairman of the bench, Bill Hudson, said Woods's comments were so abhorrent he deserved the longest sentence the court could hand down".

This is utterly ludicrous.

I'm sorry, but I find the attitude of "chairman of the bench, Bill Hudson" far more "abhorrent" and far more dangerous than anything this idiot posted on facebook.

In reply to Coel Hellier:

Sorry to cut you short before you build up a head of outraged steam at how inoffensive and reasonable his comments might be , but from your own link in the OP: -
He also wrote comments of a sexually explicit nature about the five-year-old

Which I have seen referred to in other reports, which I have not seen the detail of and which is why I DON'T think we are entitled to consider them as simply "of the same order" or the same "gist" as the other comments.
The reported comments I agree are bad taste and offensive but I would think it almost unimaginable that a magistrate would sentence at the top end for, in fact I would not think a case of comments of that nature would even be likely to get that far.

In reply to Coel Hellier:

My previous post is not to detract from your point about the fact that they all appear to have been made on his own facebook page. I think that is a valid point to an extent.
The simplest suggestion is for those offending to simply delete them and/or block him.
It does smell a bit of people seeking out his site in order to be offended, but...
that needs to be weighed against , a) the nature of FB which is that he is broadcasting his views to the walls of all those who might be friends of his, B) the privacy settings of his account which are entirely under his control that might limit the further broadcast of his posts if they are "reacted to" by those in his network c) an offence is committed regardless of whether the defendant subsequently apologises etc - though that might go some way towards averting any decision to prosecute, and would certainly effect sentencing.

As regards general conviction and sentencing a general lack of any remorse, any particular defence won't have helped him much. As I said previously, it is not beyond the realms of possibility that a more internet savvy brief might have provided a stronger defence in relation to the exposure of his comments.

In reply to off-duty:


Yep, and my point is that for justice to be seen to be done and for us to have confidence in the system we need to know what sort of remark gets you 12 weeks in jail, so we should be able to find that information out.

Anyhow, a bit of googling finds the joke in question. I won't post it here but anyone who wants to know (and as above it seems to me that there are legitimate reasons for knowing) can read it by googling the start of it which is "What's the difference between Mark Bridger" or simply click http://en.wikipedia.org/wiki/User:Holizz/Censorship

I'm sticking to my opinion that that joke, a sick joke, posted on ones own facebook page, is vastly short of criminal. It's the sort of thing that mates would tell each other, and would often be regarded as sick but funny.

It also seems to me that this joke is no worse than this twitter remark from Frankie Boyle. https://twitter.com/frankieboyle/status/252713279900758016

Why has this not led to a charge? Is it because one is a well-known comedian and the other an unemployed 19-yr-old, the sort of person police and magistrates usually regard us up to no good?

In reply to off-duty:

While I'm on, a couple more questions about "the joke". http://en.wikipedia.org/wiki/User:Holizz/Censorship

1) We're told that Woods didn't invent the joke but copied it from an internet site and posted it on his own facebook page.

2) Someone else then screen-grabbed it and posted it on an April-Jones page in a "look at this, we should get offended" spirit.

Why is act 1 worthy of 12 weeks jail whereas the person who did 2 isn't charged? Both involve re-posting a joke. Arguably, owing to the audience, act 2 would cause vastly more offence than 1.

Suppose I re-posted the joke here or elsewhere, would I be committing a criminal offence? Would it make any difference if:

A) I re-posted the joke and said "ha ha, isn't this hilarious".

B) I re-posted the joke and said "look how disgusting this is, he fully deserved 12 weeks jail". ?

In reply to Coel Hellier:

I think there is a danger that the two separate arguments about internet free speech get mixed together.
On one level we can debate whether comments are or aren't offensive/grossly offensive/criminal/reasonable and that is a matter on which we are not going to agree.

On the other level we can look at the medium on which they have been posted, the context, the accessibility, the privacy settings etc - which are very specific to the network on which the comments have been posted. Here I am more inclined to agree with you but with the proviso that making a post on your facebook wall is a little like making an announcement in a crowded bar - which might be acceptable to your mates at the bar, but. not to your Christian aunt, uncle and cousins who are sat in the corner or worse still to the various friends of friends who hear your comment broadcast on the screen outside the pub because you forgot you were in front of the camera.
I would imagine that this second area is the one that will be concentrated on in the DPP guidelines.

In reply to Coel Hellier:

My previous reply was to your previous post !
I agree with the issues that have been raised regarding posting, reposting etc - they are difficult to comment on specifically in respect of this case as the circs aren't very clear as to exactly what occurred, the timeline etc.
As I have previously said - perhaps with a more internet savvy defence brief he might have had a stronger case. Similarly this is why guidelines would be handy as there is no guarantee that the CPS/judge or even cop is particularly au fait with the full capabilities and implications of posting in various ways on every social networking site.

In reply to off-duty:


One of the problems here, and similarly in the Muamba case, is that their brief advises them to plead guilty, expecting a sensible magistrate to be sensible, say a 100-quid fine, but then finding magistrates acting totally ludicrously and losing all sense of proportion.

What they should do is fight the case and then take it to the European Court citing Article 10 of the European Convention on Human Rights ("Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...").

Note that being "grossly offended" is not something that Article 10 accepts as a reason for limiting free speech, thus it seems to me that this whole law could be struck down as incompatible with Article 10.

The problem, however, is that unemployed 19-yr-olds don't really have the wherewithall to fight to Strasbourg.

In reply to Coel Hellier:

Well I (and presumably you) have absolutely no idea why their brief advised them to plead guilty.
Again you are conflating yet another unrelated element into the argument, the severity of the punishment is an entirely separate discussion from the other two elements -"should offensive speech be an offence at all" and "should these posts in their specific contexts and internet media be suitable for prosecution".


Article 10 does however incorporate the proviso of not allowing free speech were proscribed by law. Further it is a conditional rather than unconditional right. Nevertheless it would be entirely reasonable to attempt to challenge it at Strasbourg, it might win it might lose - that's how the law tends to evolve.


I am sure there are many human rights lawyers who would be happy to make their name at Strasbourg with a pro bono case like this. Unfortunately for him I suspect that those lawyers aren't necessarily going to think that the rights we "fought and died for" include the right to be grossly offensive about 5 year olds that have quite possibly been abducted raped and murdered.

In reply to off-duty:


Only for a limited number of reasons, namely: `` ... the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ...''

"Rights of others" can't really apply, since nowhere in the Convention is there a right to never be offended, "Protection of health or morals" would be a huge stretch, you could outlaw child porn that way, but not the above joke. Nowhere does this Article allow restriction of speech merely because it is "grossly offensive". Even further, nowhere does it allow restriction of speech that is merely "annoying" (see OP).


However, the right to be "grossly offensive" about that 5-yr-old is the same right to be "grossly offensive" in general, and that means speech that a King or a Church or a President might find grossly offensive. And that is the basis of all our liberties; totalitarian regimes always start off by preventing anyone criticising them.

In reply to Coel Hellier: I find this crude censorship and locking up people for opinions, however foul very offensive indeed. I am disturbed, alarmed and angered by this.

Why am I not offered legal protection?

Of course I am quite glad there is not such a NuCrime, there is more than enough authoritarian schite messing up the statute books and destroying lives as it is. It is not just Russia!

In reply to Coel Hellier:

"Prevention of crime" - I can foresee another debate but the wording of the human rights act incorporates this proviso in a lot of the conditional articles in order to allow member states to conditionally breach European rights if they are operating within their sovereign states legal system whilst also ensuring that in order to breach the right the state must have specified that this is a crime in legislation.
That is not to say that the specific case can't be argued at the EHCR.




I understand your point - but again we are going over old ground, you believe that the right to be grossly offensive outweighs the right to be distressed. I don't. It seems pointless to re run the same arguments. The right is clearly conditional anyway, the debate is over the height of the threshold.

In reply to off-duty:


Brass Eye anyone?
Life of Brian anyone?
Jesus & Mo?

All considered grossly offensive by some people. Lady Chatterley's lover?
another book deemed grossly offensive at the time.
So what exactly is grossly offensive? Is the view point of the individual offended? If a person is grossly offended by the concept of gay marriage will they be able to have the happy couple arrested?

So all in all I am with Coel on this one.
Basically if someone calls me a smeghead (to use a substitute) to my face then depending on circumstance that could be deemed threatening and I would expect them to be cautioned if someone calls me a smeghead in a pub 500 miles away and it doesn't even get back to me but gets repeated to someone else and they find it offensive even though it was not directed at them then I'm sorry but tough.
Have the original posters of the "jokes" on sickopedia been arrested?
To repeat and paraphrase an oft quote remark.
"I do not agre with what you say but I will defend to the death your right to say it".
So free speech trumps offensive behaviour otherwise it isn't free speech and you have shot democracy in the head

In reply to off-duty:
you believe that the right to be grossly offensive outweighs the right to be distressed. I don't.

By tragic circumstance I have been on the receiving end of cruel bad taste jokes concerning a friend of mine. It was distressing and I told them so and that was that.
There is not a "right" to be distressed. Distressed is a fact of life there are thousands of things that can distress us but I would much rather be distressed than muzzled any day of the week

In reply to Duncan Bourne:

As is not entirely unexpected the discussion veers tangentially into general free speech.

Obviously you are aware that none of the examples you quote has resulted in any prosecutions for anyone, and the law hasn't changed since then other than to offer MORE safeguards to freedom of speech with the incorporation of the human rights act.

So our antiquated and oppressive law seems to safeguard the right to free speech pretty well as your examples demonstrate. Thanks.

In reply to Duncan Bourne:

I could have expressed myself better by saying "the rights of those distressed".

In reply to off-duty:


Yes, but this means that speech can be limited in order to prevent *other* crime, for example incitement to murder. You can't claim that insulting someone is a crime, and then claim that insulting someone needs to be a crime in order to prevent the crime of insulting someone.


No, I'm not arguing about the height of an "offence" threshold, I'm rejecting the idea of an offence being a crime, whatever the severity. I do accept that a likelihood-of-violence or breach-of-the-peace threshold is ok, but that's a very different thing, the thing you are criminalising is very different.


But there was the prosecution of the 15-yr-old holding a "Scientology is a dangerous cult" placard, because some PC Plod had deemed this abusive and insulting to scientologists. It is only vigilance from free-speech campaigners that prevents this sort of thing gradually spreading.

That's why defending free speech is important, not because I want families of missing 5-yr-olds to be upset, but because unless we accept principles of free speech then people such as you and magistrates will gradually criminalise more and more in your desire for an orderly world in which no-one insults anyone.

Yet underpinning all of our liberties is the right to say things that the powerful and the Establishment find offensive and don't want us to say.

In reply to Coel Hellier:

I'm afraid that is not what it means.

You can't claim that insulting someone is a crime, and then claim that insulting someone needs to be a crime in order to prevent the crime of insulting someone.


I'm not. The conditional right to free expression has the proviso that this right is dependent on that speech not being criminal. In order to be criminal that speech must be against the law in the particular country. As I said that does not prevent cases being challenged at Strasbourg.

Unfortunately you are. You are saying that speech that might incite violence is illegal. Speech that is harassing should be illegal. It's a threshold on what language you can use. Admittedly a very high one. There are many opportunities for lawyers there.


Or sensible decisions by CPS in the case you mention, which did not (quite rightly - get to court.


I agree.


but because unless we accept principles of free speech then people such as you and magistrates will gradually criminalise more and more in your desire for an orderly world in which no-one insults anyone.

Except that we don't. Hence the scrabbling for isolated cases almost all of which result in either being dropped before court or acquittals, and subsequently even more guidance on where the boundaries lie.



And long may it continue. As it has and as it does.

In reply to off-duty: I take your point that these cases are few and far between, but hasn't there been another one today? A bloke jailed for four months for wearing a t-shirt that had something to do with the police officers who were murdered.

Again - appallingly offensive - but four months in jail?

In reply to andy:

Can't say I have much sympathy for him. But again there are two separate issues.
Was his act criminal? Well he did plead guilty. I don't know the full circs - it appears that police were called by members of the public. I would guess the first act would be to suggest/ask him to remove it though I don't know if he was given that discretion.

Was his sentence excessive - I don't know what previous he might have - though I see he did admit breaching a suspended sentence for which he received a 4 month concurrent sentence.

In reply to andy:

I see the Manchester Evening News reports he had 29 previous convictions for 77 offences, so I am guessing he wasn't a first offender.

In reply to off-duty: i don't have much sympathy, but my point was more that this is three prosecutions, two of which ended with reasonably significant jail terms, in a week - and the crime in all three cases was acting in a way that would offend people.

In reply to Coel Hellier:

http://www.bbc.co.uk/news/uk-england-manchester-19911943

4 months for the t-shirt, 4 months for breaching a suspended sentence for weed.

The t-shirt sentence is a bit harsh though; expressing your opinion, no matter how distasteful, and/or offending someone really shouldn't be illegal.

In reply to off-duty:


If that was what it means then it would make the whole article meaningless, it would be essentially saying that speech is ok except where it is criminal. Err, great, what's the point of saying that?

What that phrase means is that if the speech might lead to something that is *otherwise* criminal then that speech can be outlawed. For example, since murder is illegal, then speech that is incitement to murder can be outlawed.

It does not mean that you can arbitrarily make speech a crime, and then claim that it needs to be a crime in order to prevent the crime of such speech.

In reply to off-duty:


That's a typical policeman's response. Actually neither of those two are the issue, the issue is not whether his act was criminal, it is whether it should be criminal.

In reply to Coel Hellier:

I am sorry Coel but you simply misunderstand the conditional nature of article 10.
The act places limits on the right to freedom of expression that mean that people are subject to the law of their country.
Their rights to freedom of expression can be breached provided it is legal, proportionate and necessary.
As I said (and as can be seen) some cases about freedom of expression and UK law do end up at Europe

In reply to Coel Hellier:

Not quite sure what you mean by that?
I am sure that you can see that there are two separate and independent arguments, one that the sentence for the crime is excessive and one that the crime was not (or should not be) a crime in the first place.

In reply to off-duty:


No, sorry, you are.


The whole point of the Convention is to limit what laws are allowable.


No, the limits to expression are allowed only if they meet certain categories which are spelled out: "... the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ...".

That ``prevention of crime'' clearly does not allow the entirely circular loop I outlined above, which would make the whole thing meaningless. It means prevention of things that are *otherwise* a crime, such as murder.

In reply to off-duty:


But that last entails two entirely separate issues. One is whether the act was a crime under the current law, and the other is whether the act should be a crime and whether the law should be repealed.

So if you want to being sentencing into it then that's three issues. The point is that hefty sentences are being handed out for things that many of us think should not be a crime.

In reply to Coel Hellier:

Sorry Coel, I'm on a smartphone so can't respond in greater detail. I have confused myself with slightly by focussing on the "prevention of crime" aspect.
Article 10 is subject to "the restrictions or penalties as are prescribed by law and necessary in a democratic society......for prevention of crime etc etc".

The restrictions prescribed by law allow for breaching of the right providing it is done under a specific law, and the breach is necessary and proportionate.

The whole point of the convention is to provide a framework for human rights that ensure that, where that right is conditional, the state breaching it does so in a legal and accountable manner.
Hence the requirement for example for the government to establish legislation to govern surveillance etc (RIPA) in order to legitimately continue to breach the privacy of suspects.

Now I might not be the best at explaining it (specially on a smartphone), but I am reasonably familiar with it's intricacies as I am required to lawfully breach it fairly regularly.

In reply to Coel Hellier:

Fair enough. That seems a reasonable split. I would suggest that arguing it ISN'T a crime is going to be a little academic, given the guilty plea.


Again the hefty sentences being to some extent a red herring as well, as you agree being a separate issue.

In reply to off-duty:

I'd just like to say that I have found this a really fascinating discussion.
Enjoyed it.

In reply to Duncan Bourne:


Me too. I've been tied up all day teaching, but have just had a good rant about this on my blog.

In reply to Coel Hellier:

Me three

You have a blog .... )

In reply to the thread:

http://www.telegraph.co.uk/news/uknews/9605045/What-a-shocking-week-its-bee...

In reply to off-duty:


Err, um, ... yeah It's fun.

In reply to Coel Hellier: just read your blog - liked it. Amazed that Frankie Boyle hasn't been locked up for his equally offensive and unfunny tweet - can I report him?

In reply to andy:

Tell off-duty about it!

In reply to Coel Hellier:

Agree with above, excellent thread, haven't been able to contribute due to time pressure, but been following with interest

And will have a look at your blog when I get a chance, coel...

Cheers

Gregor

In reply to Coel Hellier:

That's all pretty scary... looks like I may have to claim political asylum in France.

Just imagine if in a pub after a few I let slip a remark about the Malvinas being Argentinian, I could end up in clink for a year!

In reply to Coel Hellier:

Excellent article, especially this bit:

'We seem to have entered an age where deference is demanded of all: deference to those in uniform, and a deference to the idea of national public opinion.'

What kind of society are we developing into where any kind of dissenting thought is criminalised? Why should we automatically have to like or respect the police without that respect being earned? Why should we automatically have to support the actions of soldiers? Fair enough, they didn't ask to be sent to war, but as the news today has shown, some of them do commit outrages & atrocities, which rightfully annoy people. And why should we automatically all think the same thing, find the same things amusing and have to join in on any grief bandwagon that comes along?

Such a society is one designed to do one thing: breed brainless submissive automatons who just do what they told without question, afraid to question what is going on and speak their minds in case they get jailed for doing so.

I'm off to burn my Public Enemy t-shirt with the 'cop in a crosshairs' logo on it, just in case it offends someone.

In reply to Bruce Hooker:

Or arguing on here in a thread that lasts a year....!



What is the French take on these cases, Bruce? have they made the news over there? I had the impression that the french take their freedom of speech very seriously,

Cheers

Gregor

In reply to andy:

He could of course be legitimately given a fair trial and then executed for impersonating a comedian.

In reply to no_more_scotch_eggs:


Not that I've seen, this thread was the first time I've heard of it. As for freedom of speech in France, yes and no, publications can be banned here and recently several laws have gone through which make denying the Jewish genocide in WW2, using racist language and such like illegal but I don't think that anything like these new restrictions exist... yet.

In reply to Bruce Hooker: As a complete diversion, I have got further into that book about Russian involvement in Afghanistan.

I think you are going to find it depressing, interesting - and disturbingly reminiscent of what seems to be happening there now.

In reply to Bruce Hooker:

Your 'yet' implies that you have a worry it might be heading in that direction. I thought the Charlie hebdo thing recently had been a reaffirmation of free speech- was there general support for it, or a feeling that they had overstepped the mark? Did the govt back them, or see them as a headache and inconvenience? The story dropped out of the news here, after there was no immediate attacks on its premises, be interesting to hear the French perspective on it...

Cheers
Gregor

In reply to Bruce Hooker:

Which "new restrictions" are you referring to?

In reply to off-duty:

I hope you are also going to lock up every one of the 1400 people who re-tweeted Frankie Boyle's joke -- can't have people like that wandering the streets.

In reply to Coel Hellier:

I think the context of the comments, as well as to whom they are directed and how they are directed at them, may well be key factors in decisions to prosecute.

In reply to off-duty:

The ones mentionned on this thread, which sent two to prison and condemned another to a less severe sentence. I understood from this thread that they were new?

In reply to off-duty:


But shouldn't it be reasonably clear cut, in the sense that people should be able to work out what does and doesn't cross the line? After all, 12 weeks jail is quite a big deal to many people.

Obviously there is always some uncertainty, and some judgement to be made, in any law, but the difference between the April Jones joke and Frankie Boyle's joke seems pretty minor to me.

In reply to Bruce Hooker:


One law is from 1986, the other from 2003. It's not so much that the laws are brand new, but that their interaction with social media such as Twitter and Facebook is new. Perhaps also the way the laws are interpreted changes with time also.

In reply to Bruce Hooker:

Section 127 of Communications Act Act 2003 - which is pretty much identical to Malicious Communications Act 1988 and The Public Order Act 1986.

So (in their latest incarnation) about 35 years old.

In reply to no_more_scotch_eggs:


It's fizzled out here too. The government as a whole didn't really take a position on the affair, statements about freedom of expression were made but other remarks were made about not throwing oil on the fire etc.

Charlie Hebdo is an example of a newspaper that was banned, basically for bad taste many years ago. It used be called Hari Kiri Hebdo but it did a front page which offended Gaullists, making fun of the death of De Gaulle and making a jokey reference to a discotheque fire tragedy that happened at the same time. The paper was banned but in true French fashion just changed its name to Charlie Hebdo (after Charles De Gaulle) and carried on as before.

In reply to off-duty:

So the fuss is about the way they have been applied of late.

In reply to Coel Hellier:


No need. Already covered under conspiracy laws. If you're convicted of conspiracy to do something you usually get a stiffer sentence than conviction of simply doing it.

In reply to stp:

I'd have gone with the old offence of Incitement replaced now byencouraging or assisting an offence (Serious Crime Act 2007)

In the case of both this and conspiracy the maximum sentence is actually the same as the substantive offence (not "stiffer").