"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?" (Adam Wagner, UK Barrister, founding editor of the UK Human Rights Blog, )
The JEP has taken the stance that the changes to the Jersey communication law will clamp down on "trolls" and internet bullies, anyone using threatening or grossly offensive language. Yet there are several human rights aspects to this that they fail to mention in their leader article and their front page article, as well as the age of the UK law, which is significant.
The changes to the Jersey law mirror, word for word, Section 127 of the UK Communications Act 2003. That section prohibits any message sent "by means of a public electronic communications network" which is "grossly offensive or of an indecent, obscene or menacing character".
But the UK lawyer Adam Wagner has highlighted a number of weaknesses in this law, the principle one being that it was created before the advent of Facebook, Twitter and other forms of social media, and is therefore problematic, because the law is being applied in cases and in ways which those devising it had never anticipated.
As a bit of background, Adam is ranked as a 'leader in his field' for his civil liberties and human rights work in Chambers and Partners 2013 and as a 'leading junior' for healthcare law in The Legal 500 He has been appointed to the Attorney General's 'C' panel of counsel to the Crown and is a founding editor of the UK Human Rights Blog, for which he was longlisted for the 2011 Orwell Prize.
As a result of weaknesses in the law, which have led to a number of high profile fiascos, when the law was applied with a too heavy hand, the Director of Public Prosecutions in the UK has listed guidelines to avoid mistakes being made. Clearly, it would be helpful if those were also part and parcel of any changes to Jersey Law.
One of the key cases, which you may not have read in detail in the Jersey Evening Post, is as follows:
"Paul Chambers was found guilty in May 2010 of sending a "menacing electronic communication". He was living in Doncaster, South Yorkshire, when he tweeted that he would blow up nearby Robin Hood Airport when it closed after heavy snow - potentially disrupting his travel plans. He 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!!" " (BBC News)
The end result of that was a nightmarish two year ordeal for Mr Chambers before he finally had the case dismissed, after being charged. As the BBC noted in its survey of cases that should not have been brought, it was "Paul Chambers: The bomb plot that never was"
John Cooper QC, who represented Chambers, said: "It's an important decision for social networks. It means that in future not only does a message have to be of a truly menacing character but the person who sends it has to intend it to be menacing."
Adam Wagner, on his Human Rights Group blog, notes that the new guidelines raise the threshold for action being taken:
The guidelines are sensible, to a point. They will make it less likely in future that people are prosecuted for saying stupid things online. Prosecutors are reminded that many offences will already be covered under other criminal laws such as those dealing with harassment, stalking or other violent threats. Cases which are not covered by those laws, that is the grossly offensive etc messages, are "subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest". The CPS then seeks to define "grossly" offensive, at least in the negative, as cases which are more than:
- Offensive, shocking or disturbing; or
- Satirical, iconoclastic or rude comment; or
- The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.
"I raised a number of questions in that post in relation to consistency, political speech and the fact that this law is now an anachronism and needs to be reviewed. One of the pernicious aspects of this law is that prosecutions are brought very quickly, prosecuted in the magistrates courts and guilty pleas entered within hours. That is what happened to Matthew Woods (the April Jones 'joker'), and even under the current guidance it seems that the same could happen to Woods again."
"Do we really want police and prosecutors deciding what speech is tolerable and acceptable? Do they have the experience, intelligence and social sensitivity to do so? Will they be capable of leaving their own prejudices, including political, religious and social views, at the door? Should they be concentrating on other crimes rather than (as the guidance admits) the hundreds of millions of messages sent each month on social media?"
"Most importantly, can we imagine a single case in which a prosecution would be appropriate and in the public interest? A prosecution which would make our society better without having a disproportionate chilling effect on free speech on social media? I am not sure I can."
This is something which should certainly be assessed, and a less biased reporting by the Jersey Evening post into the complexity of the issues involved would help. I myself would personally like the BBC or JEP to interview Adam Wagner about these matters before we bring in a law mirrors the UK law - which he argues cogently is not fit for purpose and very much "out of date".
And how will such a law impact in freedom of speech online with a general election coming up in 2014? Should we be concerned? I think there is indeed cause for concern, and reading the points by Adam Wagner makes me even more uncertain how this law would be applied in Jersey, and what procedures there would be in place for appeal.
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