Daniel Preiskel and David Allen Green of Preiskel & Co LLP explore how the UK's 2003 Communications Act is being applied to a recent court case surrounding the use of electronic communications on social media forums.
In early 2012, there will be considerable press attention in the United Kingdom about the High Court appeal of the so-called “Twitter Joke Trial”, a case that goes to the heart of the relationship between social media and the criminal law relating to electronic communications. Preiskel & Co are acting for the appellant Paul Chambers in his appeal against a conviction for sending a light-hearted “tweet” about his exasperation at an airport being closed by the snowfall of early 2010. Chambers has attracted public support not only from users of social media (who have paid into a special fund) and celebrities such as Stephen Fry, but also from many experienced telecommunications lawyers deeply concerned at the illiberal and misconceived use by the relevant prosecuting authority (the Director of Public Prosecutions) of an obscure telecommunications provision in this case.
The provision is section 127(1) of the United Kingdom’s Communications Act 2003, which prohibits messages or other matter sent by means of “Public Electronic Communications Network” that are of a “grossly offensive or of an indecent, obscene or menacing character”. This provision in turn is based on predecessor telecommunications legislation, which can be traced back to the 1930s. Although it has been on the statute book for generations in one form or another it was rarely used, or even noticed. Before the 2003 Act it was for telephony only, but there are almost no records of it ever being used in practice.
However, with the 2003 Act, the scope of the offence widened to include messages and other material conveyed by a “Public Electronic Communications Network”. This, in effect, meant the whole of the internet. It is not clear whether this extension was deliberately intended by the legislature; but it certainly is the natural consequence of the definitions used. So from an offence that covered only the abuse of telephony, it became something that potentially would cover any content transmitted by means of the internet.
In some ways it is not a serious offence: it is triable not before a jury in the Crown Court but before magistrates in the lowest tier of the criminal justice system. The maximum punishment is either six months’ imprisonment or a fine. Nonetheless, the fact there is such an offence creates exposure to criminal liability as well as giving the police a power of arrest. A broad view of the offence could mean the police and the prosecuting authorities being able to criminalise internet users on a very low threshold. And as the United Kingdom does not have the benefit of the First Amendment – indeed, there is little traction in the free speech tradition in English law – this would mean that a number of speech acts could be prohibited simply because they were communicated electronically, when had the same speech act been performed verbally or by post then there would be no offence. In this way the reach of section 127(1) is an important free expression issue in the age of routine internet communication.
The facts of Paul Chambers v Director of Public Prosecutions are straightforward. Chambers was at home in the north of England when he heard news that his local airport was to be closed because of snow. He sent a “tweet” to his followers stating his exasperation. He was to fly to Northern Ireland to stay with a girl with whom he hoped to have a relationship. The tweet was not addressed to the airport and he had no reason to believe that the airport would see it: in this way the case is not analogous to the person jesting at an airport ticket barrier. In his tweet he said he wanted the airport to sort out the snow problem or he would blow it sky high. It was not intended to be serious, and it clearly was not serious, written in jokey language under his own name and with his own picture as an avatar. It may well have been unwise, and it may not have been particularly funny, but it was not a “bomb hoax” or any directed threat.
However, an off-duty airport security officer saw it a few days later when conducting a personal search of Twitter. He passed it to his manager who graded it as “non-credible”. Because of standard procedure he passed it to airport police who did nothing other than pass it to the local police of where Chambers worked. And so one day, while at work, Chambers was arrested by “anti-terrorist” police for a suspected bomb hoax. But even they realised after interview that there was no criminal intent. But the matter was then passed to the prosecuting authority, the Crown Prosecution Service (CPS).
This is where the case appears to have gone in the wrong direction. The CPS realised that there was no sufficient basis for a prosecution under the specific bomb hoax legislation under the Criminal Law Act 1997, but they think it is in the public interest to prosecute him anyway. So they looked around for an offence and decided upon the offence under section 127(1) of the 2003 Act. Worryingly they treated the offence as not requiring any criminal intent: they wrongly regarded it as a “strict liability” offence. And on this incorrect basis they prosecuted it, leading Chambers’ initial lawyer to advise him to plead guilty.
The prosecution gained national attention. Chambers changed his plea to “not guilty” but was still convicted by the Magistrates’ Court and lost his appeal to the Crown Court. His punishment was only a fine, but the criminal record has meant he has lost his job and he remains unemployed. In widely criticised judgments, the criminal courts held that regardless of his intention he should have been aware that the tweet would be “menacing”. Chambers has now appealed to the High Court where he has instructed Preiskel & Co.
The outcome of the appeal may be significant whatever the result. The support fund for Chambers has enabled him to also instruct two leading barristers and to submit an extensive skeleton argument. His submissions include asking the High Court to rule on the exact tests both for actus reus (“the guilty act”) and mens rea (“the required criminal intent”). He also has been able to make submissions on the appropriate application of the qualified right to free expression under the Human Rights Act 1998. The date for the hearing has been set for 8 February 2012.
Accordingly, this is a case that should be watched closely by all those who may face liability in the United Kingdom for sending content over the internet. It is expected that the High Court will set out how internet communications should be differentiated from other forms of communication for the purpose of criminal liability. Although it is not an offence for the carrier or the network provider, there is no reason in principle why the offence cannot be committed by a media company providing any textual or visual material. The approach that the High Court takes in this case may be critical to content provision in the United Kingdom, as well as of interest to communications lawyers and their clients internationally.