Our rights, civil liberties and freedoms seem to have been slipping from underneath us over the last decade. Is freedom of speech next?
Matthew Woods and Azhar Ahmed have been sentenced to 12 weeks in prison and 240 hours’ community service, respectively, in the last week, for posts on Facebook. The press has reacted almost unanimously in their favour.
About as famous now as Felix Baumgartner is the legislation responsible for their convictions. The Communications Act 2003 under s.127states:
127 Improper use of public electronic communications network
(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
This engages with Article 10 of the European Convention on Human Rights (ECHR). It can be seen as opposing the 2003 Act, in that it asserts what must be allowed to be said, but also legitimises the 2003 Act by stating in subsection (2) what limitations can be placed on this freedom:
Article 10: Freedom of expression
1. 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 inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The general mood – save for the lynch-mob that was apparently encircling Woods’ house – is not friendly towards the former Act (though not always explicitly with regard to the ECHR). So the consensus is that the balance ought to be shifted further in favour of free speech. But where should this balance lie exactly?
It is unlikely that the ECHR will be quite as radical as the First Amendment to the US Constitution – the strength of which is illustrated by this UKHR Blog article from March. During the press scandals there was no inclination to move in line with it and there has been scarce little mention of it now.
The focus, therefore, rests on the 2003 Act, and where it ought to draw the line. Certainly, its restriction of free speech is too tight; people ought to be able to say disgusting things – not that long ago it was disgusting to suggest that blacks and whites were equal. Furthermore, operating in a context which will necessarily be highly-charged with public disgust, a rule that effectively relies on interpreting the level of disgust (‘grossly offensive’) inevitably channels social values. The role of the law is to protect people and freedom, not enforce good manners.
Whipped up in the spirit of the moment, little of the mainstream media has really considered what ought to be done in the other direction. Wide agreement on the limitations will be essential once general opinion has swung back against free speech.
The law must protect against actual harm and in this case it seems that the Act was intended to stop harassment. The specific phrase relevant to these cases is: ‘grossly offensive or of an indecent, obscene or menacing character’. In the original ‘twitter joke case’ Paul Chambers had his conviction overturned on appeal. Chambers had threatened to blow up Robin Hood Airport, Nottingham, if it did not reopen soon. Lord Judge considered that if a message falls into the category of ‘a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character.’ This is not exactly crystal clear, but it is not unworkable either.
But the Woods and Ahmed cases dealt with the former half of the phrase – notably the words ‘grossly offensive’. The problem is that the rules as they are being interpreted quite simply do not make sense. It is difficult to see how Woods’ comments could be much more offensive; yet they certainly did not merit 12 weeks in prison.
Instead of focusing on whether a message is ‘grossly offensive’ or just ‘offensive’, the law must consider the harm it causes by the effect on the recipient – as with the word ‘menacing’. As long as the harm is disassociated from the act, judges and lawyers are left, even invited, to make judgements drawing on social values as there is nothing else to which to make reference.
Have a look at the Director for Public Prosecutions points for his roundtable discussions if you want to consider all aspects of the matter.
BY: Maurice Banerjee Palmer