Too many tweets might make a… criminal?

Richard McLean is a writer for LLB.

Britain prides itself on its sense of humour. Indeed, our rich variety of comedy is one of our finest exports. As a country that produced the likes of Jonathan Ross and Jim Davidson one might say we also demonstrate our tolerance of bad jokes. Changes are afoot however; the recent ‘Twitter Joke Trial’ of Paul Chambers illustrates a worrying trend for the law to be used as a tool to clamp down on jokes that we, well, just don’t find funny.

The facts of the Paul Chambers case are well known. An avid Twitter user, eager that his plane was not cancelled en route to visiting his girlfriend, tweeted: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!" Many would agree that this was nothing more than a bad joke, but not South Yorkshire Police and the Crown Prosecution Service. Chambers was initially convicted in the Magistrates’, failed in an appeal to the Crown Court, before being acquitted in a second High Court appeal on 27th July in a process that lasted two years.

Paul Chambers was convicted under section 127 of the Communications Act 2003 which makes it an offence to send via a public electronic communications network (defined as the internet) a message of “indecent, obscene or menacing character”. The law has drawn much criticism, from Chambers’ lawyers John Cooper QC and David Allen Green amongst others, as an ambiguous piece of legislation potentially open to misuse by over-zealous authorities.

For this case to have reached the stage that it did, the law had failed. This is as much a consequence of the unforeseen development of social media as it is a poorly drafted piece of legislation. The Act essentially applies to any form of internet communication with no distinction between communications intended for individuals and those seen by the public. Given the rise of social media, which falls into an uncomfortable no mans land between direct and broadcast messages, and between casual and more formal communication, the law is now not fit for purpose. The prosecution of Paul Chambers was akin to charging a man for telling the joke in a pub but saying it loudly enough so that strangers on the next table might also hear it, and perhaps have taken offence.

While recent events such as internet trolls’ abuse of British athletes Tom Daley and Zoe Smith demonstrate that some form of protection against malicious internet users is needed, the law needn’t be so broadly drafted. The consequences of this is a law that blows with the wind according to public opinion and the public security climate, and a law that gives incentive to the authorities to use it to mop up perceived offences in order to ensure prosecutions where a more substantive and specific offence cannot be prosecuted.

In Paul Chambers’ case the Crown Court ruled that nobody needed to have even seen the message for it to have been menacing and that it was sufficient that the message itself was judged to have been so by the authorities – a victimless crime. Furthermore the police interpreted the tweet as ‘malicious’ when there was little guidance either in the legislation or case law as to what that means. As a result a tweet which was not treated as a credible threat by the airport authorities, but still had to be passed to the police due to the airport’s internal procedure, was open to misinterpretation. The South Yorkshire Police anti-terror squad, while taking their time to investigate, also concluded that the tweet did not pose a security threat. But in a frenzy of rigid law enforcement, the police found an Act broad enough to enable them to charge the suspect.

It is alarming that this tweet could pass through so many hands, all of whom were in agreement that it was harmless, and end up in conviction. Not only did this conviction lose Mr Chambers two jobs and cause countless grey hairs, it used a significant amount of court time and cost the public purse a not inconsiderable sum – a costs order was granted with the result that the state will now rightly pay for an amount that includes the fees of two QCs.

While a quick glance at South Yorkshire Police’s greatest hits album informs that this case doesn’t quite make the force’s all time chart of heavy handedness, questions need to be asked as to why Paul Chambers’ case progressed further than the first officer’s desk. The Crown Prosecution Service, in pursuing this matter all the way to the High Court, demonstrated a stubborn resistance to reason and an inflexible stance in its interpretation of the law.

The loose nature of the 2003 Act is a common feature of much legislation drafted in an era of serious security concerns and a political consensus that was relatively authoritarian in tackling crime. In light of the widespread use of social media – which has moved us into a world barely conceivable in 2003 – the law needs to change.

Many take the view that if you broadcast something publicly then you should face public consequences – that is correct and behaviour could and should be clamped down on if it can be demonstrated to be offensive or malicious. With citizens’ rights come responsibilities, but public authorities should also act responsibly and be accountable.

Britain has always been a country that values personal freedoms as well as public security and the law should reflect this. Bad jokes should be responded to with a sigh, not dealt with by the local Magistrate.