Man who uploaded ‘grossly offensive’ Nazi salute video avoids custodial sentence

At Airdrie Sheriff Court today, 23 April 2018, Sheriff Derek O’Carroll fined Mark Meechan £800 for breaching the Communications Act 2003, by posting a grossly offensive video on the internet. On sentencing Sheriff O’Carroll made the statement below in court.

Section 127 of the Communications Act 2003 makes it an offence to use a public communications network to send certain types of messages including those that are grossly offensive or threatening. The prosecution argued that by posting your video entitled “M8 Yer dug’s a Naazi” on to the Internet, you committed that offence.

The centrepiece of your video consists of you repeating the phrase “Gas the Jews” over and over again as a command to a dog which then reacts. Sometimes the phrase is “You want to Gas the Jews”. You recite “Gas the Jews” in a variety of dramatic ways. “Gas the Jews” in one form or another is repeated by you 23 times within a few minutes. You use the command Seig Heil, having trained the dog to raise its paw in response and the video shows a clip of a Nuremberg rally and a flashing image of Hitler with strident music. You say the video was only intended as a joke to upset your girlfriend, whose dog you used, and nothing more.

On the whole evidence, including your own, applying the law as made by Parliament and interpreted by the most senior courts in this land, I found it proved that the video you posted, using a public communications network, was grossly offensive and contained menacing, anti-Semitic and racist material.

You deliberately chose the Holocaust as the theme of the video. You purposely used the command “Gas the Jews” as the centrepiece of what you called the entire joke, surrounding the “Gas the Jews” centrepiece with Nazi imagery and the Seig Heil command so there could be no doubt what historical events you were referring to.

You accepted that the phrase “Gas the Jews” was anti-Semitic though not, you said, when used as part of a joke. You said you used the phrase “Gas the Jews” because it was so extreme. You said the video content was horrific, but not when used as a joke. You told a newspaper reporter that the video was very offensive. You intended the video to be as offensive as you could make it and you posted it on your own unrestricted publicly accessible video channel which on your own description: “provides offensive social comedy and skits that get people thrown in prison”.

The evidence before this court was that the video was viewed as grossly offensive within Jewish communities in Scotland and that such material tended to normalise anti-Semitic attitudes and provoke further unpleasant anti-Semitic messages and as such, this video using menacing language, led to great concern. The reaction by employers in the local area suggests that not only Jewish people found this material highly offensive: you say you lost a number of jobs as a result.

I also found it proved that the video contained anti-Semitic, and racist material, in that it explicitly and exclusively referred to Jews, the Holocaust and the role of the Nazis in the death of 6 million Jews in a grossly offensive manner. You knew or must have known that. You knew or must have known of the risk that the video, especially the repeated use of the command phrase “Gas the Jews” together with Nazi imagery, was liable to cause gross offence to Jewish people.

As a matter of law, the test is not whether the video was offensive but whether it was grossly offensive. That standard is an objective one in which I must apply the standards of an open and just multi-racial society, taking account of context and the relevant circumstances, applying reasonably enlightened contemporary standards, considering whether the message is liable to cause gross offence to those to whom it relates: in this case, Jewish people. It is a high test. I concluded, applying these standards to the evidence, that your video was not just offensive but grossly so, as well as menacing, and that you knew that or at least recognised that risk.

The fact that you claim in the video, and elsewhere, that the video was intended only to annoy your girlfriend and as a joke and that you did not intend to be racist is of little assistance to you. A joke can be grossly offensive. A racist joke or a grossly offensive video does not lose its racist or grossly offensive quality merely because the maker asserts he only wanted to get a laugh.

In any event, that claim lacked credibility. You had no need to make a video if all you wanted to do was to train the dog to react to offensive commands. You had no need to post the video on your unrestricted, publicly accessible, video channel if all you wanted to do was annoy your girlfriend. Your girlfriend was not even a subscriber to your channel. You posted the video, then left the country, the video went viral and thousands viewed it before she had an inkling of what you were up to. You made no effort to restrict public access or take down the video.

Finally, before turning to sentence, I should note that although I invited both legal representatives to make legal submissions during the trial about the law on freedom of expression, that was done only to a very limited extent. In the absence of focused submissions on that topic by either the Crown or the defence, all I can say is that, while that right is very important, in all modern democratic countries the law necessarily places some limits on that right.

This trial, unusual though some aspects have been, was therefore concerned, ultimately, only with the narrow fact-based question of whether the Crown has proved beyond reasonable doubt that your using a public communications network on one day to post the video onto your video channel, constituted an offence contrary to section 127(1)(a) of the Communications Act 2003. I found it proved on the evidence that it was. My finding establishes only your guilt of this offence. It establishes nothing else and sets no precedent.

I now turn to pass sentence. I have considered and weighed up all the evidence in the case, everything that has been said on your behalf in mitigation and the contents of the criminal justice social work report. Certain matters stand out. Obviously, the nature and content of the video is important. But so too is the fact that the offence as libelled by the Crown relates to only one posting of the video on one day.

The social work report on you is important. It is very favourable to you and, leaving aside the circumstances of this offence, shows you to have led a generally pro-social life thus far. It also shows that you have learned a certain amount from your experiences and that you are of low risk of reoffending. Importantly, you have no other criminal convictions and that report shows that you have no prosecutions pending for this sort of offence or for any other.

In these circumstances, I rule out a custodial sentence and therefore any alternative to a custodial sentence. You have a certain amount of income and other resources according to the reports. I now fine you the sum of £800. Having regard to your financial resources, I will give you 6 months to pay. I attach a fine enforcement order.