Archive for October, 2012

A 20 year old in Chorley, Lancashire has been arrested under section 127 of the Communications Act 2003 for comments he had published on facebook about the April Jones investigation.

I can’t comment about what he has said, nor would it be appropriate for me to do so.

But, this piece of legislation has been floating about a lot as of late. Especially on twitter.  Quite recently police tweets were speaking about using it following comments of a solicitor. I understand as well that comments were made about other lawyers and so on… again I can’t comment on that.

French Foundations

I think a simple French quotation reflects neatly my own philosophy about freedom of speech and  that part of my practice: ‘I don’t agree with a word you say but I will defend to death your  right to say it.’

The ability to express one’s own opinion is the cornerstone of our society.

But, how far do we go? And when do we stop defending that right and start punishing expression?

Example

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

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Grossly offensive or indecent

I adore my friends, but if Mary Whitehouse received emails which I sometimes do then there’d no doubt be a conclusion that they were grossly offensive or indecent rather than funny.

And, do you know what? I think some things which politicians say are grossly offensive.

Menacing

The meaning of ‘menacing’ has troubled a number of the country’s leading lawyers and culminated in the ‘Twitter Joke Trial’: Chambers v DPP [2012] EWHC 2157 (Admin).

Firstly, twitter falls within s.127.

Secondly, there was no express provision in s.127(1)(a) for mens rea. It was therefore an offence of basic intent. It was not accepted that the sender of the message had to have intended to threaten the person to whom it was or was likely to be communicated, or that specific purpose was necessary, Collins considered. The mental element of the offence was satisfied if the offender had intended that the message should be of a menacing character, or if he had been aware at the time of sending the message that it might create fear or apprehension in any reasonable member of the public who saw it.

So if you write something on twitter which you may be aware is offensive and you press tweet, then you may well be committing an offence.

The right

My tutor at Oxford always used to remind us, that there isn’t a right ‘not to be offended.’

Should I be offended by section 127? Does it offend against what Voltaire said?

Potentially it might.

But then, we are living in a society where young people  kill themselves because of what their ‘friends’ say on facebook. That must be stopped. So am I asking for it both ways?

Building on Voltaire:

I’ll defend your right to express a political view

I’ll defend your right to joke

I’ll defend your right to be offensive

But, I won’t say you have a right to hurt or victimize.

The answer is in Ireland

So there’s the problem in my argument. I don’t believe the right to express yourself should be curtailed. But then, I feel people should be protected from harassment and psychological damage.

The answer is: they’re already protected.

ABH can include psychological harm: R v Ireland [1997] 4 All E.R. 225

And, the Protection from Harassment Act 1997 legislates  against a person carrying out a course of conduct which amounts to harassment of another.

So, no, I don’t think we need section 127, as the risk is, what may offend you on twitter may be the properly held political belief of another.

FTD

 

 

 

I actually rather like Dr. Who. Even the new bunch. I think it’s rather good. It’s rather British, there’s a sort of cerebral science fiction. I remember when it was relaunched, my tutor at Oxford (who I doubted even owned a TV) complained that it wasn’t cerebral enough. Dr Who saved the day with his brain not his brawn he complained.

On Saturday’s Dr Who it was definitely a brain episode. The world, or at least New York, was saved by a temporal paradox. Basically, (stealing from Wikipedia):

A time traveler goes to the past, and does something that would prevent him from time travel in the first place. If he does not go back in time, he does not do anything that would prevent his traveling to the past, so time travel would be possible for him. However, if he goes back in time and does something that would prevent the time travel, he will not go back in time. Thus each possibility seems to imply its own negation – a type of logical paradox. [sic.]

And in Dr Who, the paradox happened, a character effectively killed themself so they couldn’t ‘go back in time’ and the paradox happened, the world was saved and so on.

If your brain is hurting, I shall now get to the point.

Our temporal paradox

I think there’s a temporal paradox in the legal job market at the moment. As I tweeted earlier today, I was quite surprised when I looked at the jobs advertised on the Law Society Gazette.

There are 1744 jobs advertised. The two most available job sectors in law:

-Personal injury/Clinical negligence 294 jobs

– Commercial property 246 jobs

The lowest?

– Civil liberties 2 jobs.

Perhaps that’s not terribly surprising. In the first instance, you’re more likely on a day to day basis to need a lawyer to do your conveyancing, or perhaps your will, or perhaps even some will need a personal injury lawyer because they’ve been hurt.

You’re less likely to need a civil liberties lawyer, aren’t you?

Perfect paradox

The paradox I see is this: civil liberties are most at risk in recession but there is not enough funding to protect those civil liberties because of the recession.

Examples…

– The most obvious is protest. There is a right to assemble a right to march. And when are you most likely to do so? When there’s a recession, when there’s something to argue, to debate about. So, Jarrow, the Miner’s Strike, Occupy. The money isn’t available to protect that right ‘pre-facto’ (if there is such a term…) so if the police/local authority/Government decide to limit that right, there’s not legal aid floating around to challenge those decisions. I can rely on history in this regard, the Public Order Act 1986 was put in place, because of the Miner’s Strike.

– Less obvious are things such as industrial relations. In the last recession, the right to strike was very obviously restricted through the Trade Union and Labour Relations Act 1992.

– And what about: who polices the streets? The Civil Contingencies Act 2004 destroyed a rule since the Bill of Rights 1689 that the Armed Forces could not be deployed in the country during peace time. But now? In an emergency they can. And in a recession? They can. Look at the Olympics, the Armed Forces did a fantastic job but it’s not their function. They were filling a gap left by the private sector. In recession the Government look to the private sector to fill the police gaps. If the private sector fail again who can we rely on?

Luxury

Civil liberties are not a luxury, they’re the foundation stone upon which British values and institutions are built, it might seem trite, but: Magna Carta, the Bill of Rights, Habeas Corpus, trial by jury, policing by consent, freedom of speech and so on…

So, ring-fence the funding for civil liberties and when the recession is over, Britain will still be recognisable.

The paradox is this, if you cut funding for civil liberties and legislate against them to save society then when you wake up, the society you wanted to save will no longer exist.

FTD