School of Law

The Leeds Journal of Law & Criminology

Can you say “social media prosecutions” with a straight face? The Crown Prosecution Service can

The Director of Public Prosecutions does accept that not everything rude or offensive should be subject to prosecution, but it’s troubling just how much discretion over criminalising what we say rests on the whim of the CPS.

Twitter: It’s interesting and slightly amusing that this quirky little message system with the silly yet entirely apt name should stress our justice system so. But it does, because it does what it was meant to so well: provide an outlet for expressing whatever happens to be on one’s mind at a given moment, from the sometimes profound to the more typically lame and, apparently, often the offensive and rude.

It’s particularly glaring proof of Marshall McLuhan’s thesis that the medium is the message. Is Twitter sucking our brains even more than TV? Pre-Twitter, pre-internet certainly, spreaders of the dumb and the vile generally had to do so with more intention to large audiences. Now, our prosecutors are twisting and turning, trying to grapple with how to contain and restrict this barrage of speech.

I was happy to learn that the Crown Prosecution Service will not be charging the dork who told made some homophobic comments regarding Tom Daley, and that the Director of Public Prosecutions had laid out some new guidelines for prosecutors on dealing with incidents involving social media.

Unfortunately the statement only further highlights just how much we have to fear should we run afoul of the expansive powers at the disposal of the State for repressing and criminalising speech and expression. The DPP has decided not to charge this Daniel Thomas with anything, so why the long statement on why not? It is an indictment in all but name. Evidently, through the list of reasons the DPP gives for not prosecuting, we are led to believe Thomas should be happy to have escaped jail for his transgressions. The DPP noted that Thomas apologised and expressed remorse, which means the DPP still reserves the right to vet every communication a citizen makes to ensure it meets his standards of decency. Further, the law Thomas was nearly prosecuted under was the Communications Act 2003, which makes it criminal to send “grossly offensive” messages via a public electronics communications network (S. 127). This was the same provision used to prosecute Paul Chambers, the hapless jokester of the now-infamous “Twitter Joke Trial” (Chambers v DPP). He made a lousy joke about wanting to blow up Robin Hood Airport.

If this wide provision weren’t enough, an equally broad net may be cast using S 4A of the Public Order Act 1986. This is the provision under which Liam Stacey, the Swansea student convicted for far too laddish behaviour in rudely expressing glee over the collapse of footballer Fabrice Muamba in March of this year. After a series of Twitter exchanges with various people that evening Stacey was arrested, charged and, after pleading guilty, sentenced to 56 days in jail. His offence was made more serious by the racial aggravation provisions in S. 31 of the Crime and Disorder Act 1998.

If I were to go through a play-by-play of the specific Twitter comments, this blog post would read like the judgments in these cases, so you may as well take a look at Stacey’s here. Suffice it to say a few things. First, the Communications Act offence may be overbroad, but using the Public Order Act for a few nasty Twitter comments which never advocated violence or hatred against specific people is a downright abuse of the law; at no time was “public order” ever threatened in any reasonable conception of the term. Second, the DPP notes in his guidance that context is very important. It is clear from the judgment that although Stacey never actually directed racist comments toward Muamba, the Crown Court wrote (at para. 17) that “the Appellant’s offence was committed in the context of the grave illness which had suddenly afflicted Mr. Muamba,” and this greatly influenced their judgment.

Of  course, Stacey no doubt started spouting off after Muamba’s collapse, but all he had to say was “LOL… Muamba he’s dead!” It was in response to abusive replies from other people that he said all the really nasty stuff. I doubt those others were prosecuted as well. Again, this offence is supposed to be for breaking public order, not being insensitive. This line of thinking creeps dangerously close to prosecuting people not just for what they do, but for how they feel.

Now, I know that there’s a lot of prevailing opinion on this which says that we ought not to protect the speech of the racists and haters out there. But is the criminal law the solution for this kind of behaviour? I would say it should just be ignored, or brought out through the media so that the issues should be discussed and perpetrators indicted by the far more appropriate court of public opinion. Or, at most, perhaps he should be made to take sensitivity training or do some community work. Should people actually be sent to jail for being rude? Liam Stacey may have acted an idiot, and maybe I wouldn’t want to be his friend, but I doubt he is an irredeemable person.

Moreover, Paul Chambers wasn’t a racist or a bigot, just a lousy joker. First they came for the racists, then the comedians, then…? The willingness of the CPS to use these broadly-worded laws to the widest extent – and beyond – of their wording and intention, and the willingness of magistrates and judges to accept this sloppy excuse for justice, demonstrates the need for narrower laws and stronger protections for freedom of speech. It is nice to hear the DPP mention the importance of freedom of speech, but I am afraid that I don’t trust the Crown Prosecution Service to protect my freedoms.

I do, however, continue to resist using Twitter, just to be safe.

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