Twelve weeks in prison for sick jokes on Facebook? Really?

by Adam Wagner

Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?

Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “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“. He was sentenced at Chorley Magistrates’ Court.

I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard article. According to the Standard, Chairman of the bench, Bill Hudson, said Woods’s comments were so serious and “abhorrent” that it deserved the longest sentence they could pass, less a third to give credit for his early guilty plea. He also said:

The reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.

Yesterday I attended a roundtable discussion about how to approach section 127 in the age of social media at the Crown Prosecution Service with Keir Starmer, Director of Public Prosecutions and a group of journalists. Mr Starmer pointed out that the Communications Act 2003 was passed before either Facebook or Twitter had been invented, and so the CPS were understandably having trouble knowing how to police the billions of communications made publicly on social media. The CPS is to open the issue to public consultation so it can publish guidelines for prosecutors.

Starmer’s starting point was that, constitutionally speaking, the CPS has to apply the law as it finds it, within the public interest. Fair enough, as long as the “public interest” is interpreted with a very strong emphasis on free expression rights under Article 10 of the European Convention on Human Rights.

But my worry is that this law was not designed for the purpose it is now being used for. In 2003, only perhaps Mark Zuckerberg knew that within the next few years literally billions of people would become mini-publishers on a public communications network. Now, the accidental combination of an old (in technology terms) law, designed it would seem primarily to stop harassment through the post and over the telephone line (see para 6-11 of DPP v Collins), with revolutionary new media may be making criminals of many of us, and that cannot be a good thing.

People post sick, offensive, horrible and stupid things on social media all of the time. People are sick, offensive, horrible and stupid. Anyone who has been to school knows that teenagers can also be sick, offensive, horrible and stupid. As a society, we should try to make people nicer, cleverer and less offensive. But is sending people to prison, along with rapists and violent thugs, the right way to do it?

Sending people to prison for being “grossly offensive” has the whiff of mob justice about it. Anyone who uses Twitter regularly will have seen the mob at work, whether attacking an individual for saying something offensive and stupid, or harassing a celebrity for crimes against taste or their political views. Sometimes this is a bit of fun, sometimes a little more sinister. There are real problems involving malicious harassment of individuals as well as abhorrent views.

But, as anyone who has used Twitter or Facebook will also know, there is a strong sense of community in that social space which is, to a very significant extent, self regulating. People are exposed, ridiculed, embarrassed, ostracised. Many of the rules of large human social spaces apply there too. Like other large social spaces, this can degenerate into mob justice. But should the criminal justice system be in the hands of that mob?

Another very difficult issue is consistency. For example, what is the difference between Matthew Woods’ sick jokes (assuming the Evening Standard printed the worst of them) and famous comedian Frankie Boyle’s, who joked about missing child Madeline McCann and Jimmy Saville on Twitter just last week? I should add that Boyle’s ‘joke’ has been retweeted/favourited by nearly 2,000 people.

Many people would say that freedom of expression rights should not protect people who make grossly offensive jokes. That sounds sensible, until you try to pick it apart. Across history there are examples about people being punished disproportionately for making “grossly offensive” comments, whether about god, political leaders or the military. The reason free expression rights must be robust in a democracy is that leaders (or for that matter, the majority) are not traditionally very good at policing speech and thought, but rather tend to protect their own narrow interests at the expense of the interests of all sorts of others.

The problem is that once the state starts policing speech and thought, this tends to be the thin end of the wedge. People become frightened to say what they feel and instead say what they think they ought to say. Such a climate would undoubtedly place a chill on the wonderful, bizarre, entertaining, sometimes concerning but always interesting world of social media. And that would be bad for everyone.

The case of Azhar Ahmed illustrates the point slightly better than that of Woods. Ahmed posted on his Facebook wall that “all soldiers should die and go to hell“, after the death of six British soldiers. He made no specific threats to any particular soldier or soldiers. He said that “he was only trying to make his point that many other deaths in Afghanistan were being ignored“. He was found guilty of sending a “grossly offensive” communication.

Ahmed is clearly not a consummate or sophisticated communicator. His comments will have upset people. Perhaps his sentiment was that he was very strongly anti-war and therefore political, or perhaps he really wished that all soldiers would die. He obviously never expected to be in court defending his comments. But is the criminal law the best way to deal with such ambiguity? [update – Ahmed has been given a community order (sentencing remarks here), i.e. not a prison sentence, for his comments. Which seems somewhat inconsistent with Woods’ case].

One of the many worrying aspects of Ahmed’s and Woods’ cases is that both of their trials occurred during times of tragedy (the deaths of soldiers, a missing girl) where people are understandably emotional and have lower thresholds for being “grossly offended”. Indeed, a group of 50 members of the public apparently cheered during Woods’ sentencing.

The problem for the CPS, as Keir Starmer is well aware, is that there are suddenly billions of communications for it to police. Many of them, on the view many people on a bus, will be grossly offensive. Even worse, many will remain online forever. But people often use social media to express their thoughts and feelings, not considered missives. Should the state be policing thoughts and feelings? Where is the public interest in that?

It has been reported that Woods was arrested “for his own protection” from the mob circling his house. But I think it is probably fair to expect the police to protect people without having to put them in prison for their own safety.

In July, the Lord Chief Justice quashed the conviction of Paul Chambers, another social media user who had posted a ‘joke’ in bad taste, in that case about blowing up an airport. The judgment waxes lyrical about free speech, even quoting King Lear in relation to Twitter users:

Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

But for all the laudable principle behind the Chambers judgment, the reality seems to be that people are not really able to speak what they feel. Woods’ ‘jokes’ were stupid and horrible. But we need to think very hard, as a society, about whether we really want to be sending people to prison for making sick jokes.

Update, 5 November 2012: Woods has had his sentence cut on appeal to six weeks. Everything I have said above still applies – he should not have gone to prison at all.

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