Social networking and freedom of speech

The case of Paul Chambers raises an interesting question about freedom of expression in the internet age. When Chambers discovered that the airport from which he was due to fly was closed, he tweeted:

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!

He was then successfully prosecuted under section 127 of the Communications Act 2003, which says:

(1) A person is guilty of an offence if he –
(a) sends 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; or
(b) causes any such message or matter to be so sent.

Last week, the High Court quashed Chambers’ conviction. The key question was whether the message was of a “menacing character”. Taken literally, it could be considered to be a “menacing” threat to carry out a terrorist attack. But was it right to read the tweet in that way? Lord Judge, the Lord Chief Justice, thought not. Of the Communications Act 2003, he said:

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.

Lord Judge concluded that, read in its proper context, Chambers’ tweet could not be taken to be “menacing”. This is obviously a sensible decision. It does not give users of Twitter – or other social networks – the green light to issue credible threats. But it does, as Lord Judge put it, mean that “if the person or persons who receive or read [the post], or may reasonably be expected to receive, or read it, would brush it aside as a silly joke … then it would be a contradiction in terms to describe it as a message of a menacing character”.

The case also raises a broader point. As Jacob Rowbottom points out, normal conversation – of the type that might previously have taken place face-to-face – now regularly occurs via social networks:

People make flippant remarks in conversation, which could be interpreted as obscene or menacing, but which are quickly forgotten and cause no concern. When using services such as Twitter or Facebook, people speak as they do in conversation. However, the statements are made on a communications network that records those words and allows others to monitor what has been said (and potentially fall within the ambit of section 127). As a result, a much broader range of expression can now come to the attention of police and prosecutors.

How, and to what extent, should freedom of speech be protected when these new ways of conversing are in play? Had Chambers’ remarks been made orally to his friends, rather than digitally via Twitter to his followers, he would not have faced prosecution. Should the imposition of criminal liability – and the attendant damage to reputation, loss of job, and so on – turn on whether the offending statement is made in normal conversation or via a social networking service? As Rowbottom points out elsewhere, it is well-recognised that freedom of speech extends to political and other “high-minded” forms of speech: but, he argues, everyday conversation is also a valuable form of self-expression that is worthy of protection. This raises questions about the way in, and the extent to, which such conversation should be legally regulated when – as is increasingly the case – it is conducted not in the pub but via the internet.

Image above reproduced under Creative Commons Licence

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