Sunday 14 November 2010

I guess the joke is on me

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I had arguments with a few people on the Guardian Comment-Is-Free back in May shortly after Paul Chambers decided to appeal his conviction. I recall one person in particular telling me that Paul would be stupid to appeal his conviction. The decision was right and he would surely lose, he said. I said I'd be willing to bet £1000 that the appeal would succeed. I was that confident. Well, I guess the joke's on me. Now we are facing a very difficult situation indeed. The use of section 127 of the Communications Act 2003 to prosecute Twitterers making offhand remarks has been twice legitimized in court. Judge Jacqueline Davies in denying the appeal stated that Paul's tweet was "menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed." I am indeed alarmed, but not in the way she suggests. What do we do? Where do you draw the line?

I've decided on a bit of a legal thought experiment and I invite anyone to chime in with your views on this. It goes like this:

Suppose I place an update on Twitter saying "I've decided to blow up Heathrow Airport. I'll post a photo as proof once I've done it." And let's say that what I had in mind all along was to take a photo of Heathrow Airport (perhaps even an aerial shot from Google maps) and blow it up onto an oversized printout. Let's suppose I manage to do this and several hours or perhaps even days later I pose in front of my blown up photo and then post this to Twitter in a way that makes it obvious that it is connected to the earlier tweet. Have I caused menace? Is this a suitable application of section 127? It could be argued quite reasonably that I must be aware that this is couched in terms likely to cause menace, particularly with my close following of the Chambers case.

This is of course assuming I didn't get arrested before I had a chance to post my photo. I think it would be quite difficult to talk my way out of it in that case, unless I could prove my intentions by showing a piece of registered mail to myself setting it all out. Even still, does my intention here mitigate my action? I must surely have been aware that someone might feel menaced by my tweet. Would I have committed a crime? If so, would that be just? Thoughts please.


  1. Okay Matt so what's the answer? Does everybody storm city hall with pickets and start an uprising?

    All in the name of what? So people can call out bomb threats on the web?

  2. Ah, there you are. Thanks for interacting with me here. My answer to you is "You tell me." What are we prepared to accept as justice? If you think my example is a good use of this law then that's one opinion. I wouldn't necessarily disagree with you. I'd like us to think about what we're prepared to accept from people online and what is acceptable as justice. I personally feel that the entire internet should be excluded from CA2003 because it is not a PECN. It's primary purpose is to provide content. And the definition of an ECN (Electronic Communications Network) excludes Content Service Providers. But forgetting that, what do we want from the law? I certainly don't want this.

  3. I mentioned my solution. I don't believe that domains being recognized as an establishment or organization or commercial entity should have such a low overhead for ownership. I think that the ease by which one can access the internet reduces the responsibility they have to the internet as a whole.

    Additionally, those who host publishing services like twitter should be held accountable for thier users actions.

    If somebody calls out bomb threats it should be the services responsibility to ban and otherwise moderate it.

    So if someone uploads child pornography to Facebook, Facebook as well as the users should be held accountable for thier actions.

    I'm from Canada, I don't know what it's like wherever you are from, but establishments need a license to serve liquor, and if their patrons step too far out of line or if they themselves step over the line, they lose thier license.

    I think people who publish to the internet should be held accountable for what they publish.

    So what's your solution? Protest? So what's his name can call out bomb threats and jokes on the internet?

    I don't see that as a good way to get along with government, in fact, I see it as a sure fire way to have the government come down harder on its citizens in the long run.

  4. No, I'm afraid you've missed the point. Nobody has made a bomb threat. The police and the prosecution did not believe this to be a bomb threat, otherwise they'd have charged under a different law specifically dealing with bomb hoaxes. This is a vaguely worded communications law. Chambers did not make a threat. If he had, he would have been banned by Twitter. Twitter's terms of use are very clear on the matter. Nobody saw this as an actual threat. Not the airport, not the police and not even the prosecution nor the judge.

    Of course people should not be permitted to make actual bomb threats, no matter what medium they use. People who publish on the internet are held accountable for what they publish. There are laws dealing with libel and with making threats, but as with anything you need to examine the context closely in order to determine the true meaning. I am from the US, where First Ammendment rights would have quashed this case immediately, but I live in Britain. Here we are protected by Article 10 of the European Convention on Human Rights, but it is poorly implemented in this country and getting before a European Court is a very lengthy and expensive process.

    Your suggestions are not without merit but I don't see this as being relevant to the particular case. He did not, nor did he intend to, cause menace as described in this act of Parliament.

  5. No I didn't miss the point. I have already said they are making an example. That is what Government and Law Enforcement does. Jokes... Bomb Threats...

    What are you fighting for and how do you feel that you as a contributing member to the internet are making a difference?

  6. In other words... I feel bad taking it this far, but I believe that your fear mongering is actively supporting self-censorship whether you intended to or not.

  7. And if not, because I have no doubt that you have a lot to say. Actively supporting that someone have the right to call out a bomb threat whether it is believable or not, in the argumentative and angry manner which you have actively done influences others to do the same.

    There is no solution, just unrest. Or argumentative behavior.

  8. Okay. Thank you for commenting lots. It's difficult for me to reply when I'm at work because of content filtering. I have to dip into quota time.

    First, fear mongering is government's game not mine. I do not support the right to make a bomb threat. The CPS and two judges have defined the context of Paul's tweet as "the times in which we live and the constant threat of airport terrorism" essentially. But this is not a context, it is a constant. Therefore, the implication is that we must always submit to it. In other words, it is no longer acceptable to make a joke about airport terrorism anywhere it could be publicly overheard. That is not right. And even if it were, perhaps they might have given us a heads up first. I want to clear Paul because he meant no harm, but I also want at least clarification of what this law is for. It is being used very bluntly at the moment and in ways in which it was never intended. The solution is to get the law changed somehow. This is not beyond the realm of possibility. People are writing to their MPs and the defence have some contacts in the government. We'll go before the High Court and then the Supreme Court and finally the European Court if necessary. Bad laws are bad laws. They need to be changed.

    Bottom line: this was clearly never a serious threat and never intended to be taken as such.

  9. Incidentally, you may be unaware that the Crown Prosecution Service had originally been under the impression that section 127 was a strict liability offence. They would not have pursued it had they known they needed to show intent. Paul orginally pleaded guilty when told he had no choice, then a judge vacated the plea when DPP v Collins was pointed out.

  10. Crikey, just read the wording of section 127 of the Communications Act 2003.

    I believe that everyone on the internet is now guilty under that law. That aside, I am not educated in law, am I not required to turn myself in?

    Shouldn't that be case and point of the defense, that any law that makes all internet users guilty, has been taken massively out of context. Hope this gets fought all the way up, UK law is becoming something of a joke.

    Having read the cps own guidelines on 127

    It says should be used for improperly sent phone calls and emails, e.g. nuisance calls.

  11. This is all great stuff, but I'd really like some commentary on the actual scenario I posed.

  12. Okay fine... I am just mad because you don't listen. That's all... I do it all the time too... reply to a comment challenging someones thoughts or motives without really understanding where they are coming from or what they have previously said.

    That's fine. We all do it. It rubs me the wrong way when someone says I don't get it, ignores everything I just posted and continues to argue. That's it.

    I think it's a big waste and I don't let things go. So thank you for sharing your views.

  13. Likewise. Sorry for missing your point.

  14. If it helps... I may have mis-understood your motives.

  15. Matt,

    It's an interesting question you pose. Applying the principle in R v Chambers (incorrectly applied in the appeal but relevant here) you'd be liable because you've phrased it knowing that it would be read in a particular way (MR satisfied) and the tweet itself is the AR. The question I think you're asking is whether, this all being the case, you should still be able to be prosecuted for it. The two issues you have raised which are matters of opinion are whether this is a reasonable use of s127 and whether your intention can mitigate your transgression. I agree with your thoughts, expressed elsewhere, that credibility of a 'threat' is important. In that sense, sadly you and I are different to professional comedians in as much as the authorities don't look upon our words with a pre-conception of humour as they would with a comedian, and therefore may feel that investigation (at the taxpayer's expense) is necessary. That is not to say that comedy should be the reserve of professionals, merely that their status confers a different meaning on the same joke/comment. Thus your intention would need to be proved after the event rather than assumed before it, which may already have set the wheels of investigation in motion. To my mind, it just seems counter-intuitive to use twitter in this way. The tweet in your example is analogous to a suicide note (if serious) rather than a plot, an intention to carry out an action (the only difference being the recipient of the consequences). I say this because a 'threat' would be communicated directly and a 'plot' would not be communicated at all, certainly not in such a blatant manner. The police can, I'm sure, argue a convincing case that people may use the internet for this - indeed, I believe I read somewhere about particular chat rooms that had been discovered for this purpose. The law cannot simply say "except Twitter" because the particular website is transitory and irrelevant. It seems as though the authorities must simply "wise-up" to the technological environment we are in and alter their classification of threats accordingly. The #IAmSpartacus viral campaign shows exactly that.

    So for an answer to your question, I believe that s127 needs only minor alterations, if any (and those just to stop misuse). It is down to the police to learn what has changed, just as they will have had to do with the invention of the telephone or the mobile phone or any other communications device. They don't monitor every phone call or text we send (actively) - why should the internet be different just because it's searchable? The key audience for this debate is those beyond the scope of Twitter and blogs. Dr Evan Harris wrote an article on Friday about changing the law, published on the Guardian website. I asked him if it would be in the printed paper - he said no. This is our problem. We are debating it furiously and that is fantastic. But policy is not made here. The offline public needs to understand this issue clearly.

    Ash (@AshleyConnick)

  16. It seems to me the answer to your scenario is whether you are required to prove your innocence or they are required to prove your guilt.

    To me what would be just in your example would be to be assumed innocent (ie that you were planning to blow up a photo) and the prosecutor to be required to prove your intention was otherwise. The way the law seems to be being applied is the other way round. All messages are assumed menacing unless you can prove that they aren't

    The purpose of a threat is to make someone do something they wouldn't have done otherwise so to prove someone is sending a threat should involve proving they are trying to change someone's action.

    PS I'm not an expert in the law - this is just what I feel is just and think people expect from the law

  17. In your scenario, the answer is that when I read the first tweet I'd
    be waiting for a punchline. Obviously you wouldn't say you were going
    to blow up Heathrow if you were heading over there with plastique.
    Unless you were a suicidal/homicidal nutter. If I wondered about that,
    I could just read your timeline. No recent tweets railing at
    ex-spouse, boss, Zionist conspiracy etc? Probably a joke. Millions of
    jokes like this are told every day in all media. Move on.

    There's a parallel here with the way the Americans think airport
    security is about X-raying people and feeling their testicles, while
    the Israelis, under much greater proportional threat, concentrate on
    assessing behaviour, speech and eye contact. It's actually not very
    hard to tell if someone's just about to do something lethal, if you
    use your human instincts rather than arbitrary systems.

    Similarly, it's usually obvious what's a joke and what isn't, if you
    stop trying to second-guess yourself or predict what someone else
    might think instead of just thinking.

    I don't see the need to change s127, as long as it's accepted that
    it's not a strict liability offence. The ruling that Paul Chambers'
    tweet was "menacing" is obviously perverse. It just isn't, unless you
    suspend all context and force yourself to read it in a bizarrely
    literal way. And that's not what the courts are supposed to do.
    "Ordinary person" or "reasonable person" is the test subject, not

  18. Great comments guys. Thanks. Keep em coming.

    @MrGamma no hard feelings I hope.

  19. As with others, I'm not a lawyer nor do I have legal training, but I do speak English and can read :)

    S127 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.

    Firstly, I'd argue under (b) the person that caused that message to be sent is the person responsible for closing the airport :)
    But more seriously: how does this entire section (127) fit with Article 19 of the International Covenant on Civil and Political Rights? "2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice"
    The entire section discriminates as to choice of media, and the restrictions allowed under Article 19 3(b) do not apply as there was no threat to public order or national security in Mr Chambers' expression of frustration. Ohg, and Article 17 of ICCPR requires no arbitray interference with correspondence: given that had this communication / correspondence among friends been by post rather than electronic there would not have been an action under S127, this is certainly arbitrary.

    With respect to your scenario - the language used is capable of misinterpretation by a paranoid android, but not by a "reasonable person". However S127 does not require the reasonable person test in itself; the Guidance refers bomb threats to the section on Public Order offences and any reasonable person believing the threat to be genuine would have looked there. To suggest that blowing up a photograph of an airport and causing an explosion likely to injure are equivalent is certainly not reasonable: to suggest the phrase "blow up" has only one interpretation is simply showing a lack of familiarity with the English language. I don't think your thought experiment investigates that; then again, I'm not sure how it could.

    The idea of that intent and context are irrelevant is more than slightly alarming: if, out of context, one overhead various bits of Fawlty Towers/Blackadder/Mock The Week/etc, there would certainly be cause for investigation - but no-one would be silly enough to remove the context before taking a view or making a judgement.

  20. @flay no hard feelings at all... I am a loose cannon on comments. Like many others.

    I am not an expert on linguistics or the police or government or world politics.

    I deliberately try to post neutral in many cases, as calling someone out tends to set them off, and it kind of does the same to me.

    I can't fight on comments or forums or wherever, especially with politics, you can spend days, or even weeks, trying to get points across.

    It's almost like the web as an information resource is drying up in favor of social media and product advertising. Few people post links anymore, much of that is commentary.

    It's entertainment many times over, and I take it too personally more often than not.


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