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Thursday, 2 June 2016
Gross Offense: Some Guidelines and Case Law
“The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive."
There was an interesting piece by Sarah Ferguson on free speech which I post below. One of the more problematic areas in the amendments to the Telecommunications Law is the ambiguous nature of the term “grossly offensive”. Like the UK Law, the Jersey Law has these provisions, but it is not clear where the threshold is for determining that.
As Additional Solicitor General Tushar Mehta said in India of a similar law there, “what is grossly offensive to you, may not be grossly offensive to me and it is a vague term." This is not just a local problem, it is endemic worldwide wherever similar legislation has been enacted.
Section 127(1) of the UK Communications Act 2003 states that a person is guilty of an offence if he (a) sends 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; or (b) causes any such message or matter to be so sent. The Jersey Law is very similar. So what I will do now is look at a case which is certainly close to the edge, but which was judged in the end as not guilty, and in a later blog, cases judged guilty.
In the recent UK Court case of DPP v James McConnell , Mr McConnell, a Pastor at Whitewell Metropolitan Church, was charged that on a date unknown between 17 May 2014 and 22 May 2014 he had “(i) sent by means of a public electronic communications network a message or other matter that was grossly offensive, contrary to section 127(1)(a) of the Communications Act 2003 and/or (ii) caused to be sent by means of a public electronic communications network a message or other matter that was grossly offensive, contrary to section 127(1)(b) of that Act”
In particular, he has stated in a sermon which was broadcast on the internet that “Islam’s ideas about God about humanity, about salvation are vastly different from the teaching of the Holy Scriptures. Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell.”
A very important feature of the case was that this sermon was apparently either “live-streamed” over the internet, or else very shortly afterwards made available for downloading.
The prosecution conceded that, though McConnell’s words were capable of being construed as grossly offensive, they were protected by his rights under Articles 9 and 10 of the European Convention on Human Rights.
Article 10 protects not only speech which is well-received and popular, but also speech which is offensive, shocking or disturbing:
"Freedom of expression constitutes one of the essential foundations of a democratic society ... it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb .
McNally summed up the case that: “In my view Pastor McConnell’s mindset was that he was preaching to the converted in the form of his own congregation and like-minded people who were listening in to his service rather than preaching to the worldwide Internet. His passion and enthusiasm for his subject caused him to, so to speak, ‘lose the run of himself'”
On the facts, he concluded that the words upon which the charges were based, though offensive, did not reach the high threshold required of being “grossly offensive”, and noted that “the courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive. It is not the task of the criminal law to censor offensive utterances”
It is worth noting that Muhammad Al-Hussaini, a senior fellow in Islamic studies at the Westminster Institute, offered himself as a witness on the pastor’s behalf, having travelled to Belfast for the trial. After the verdict, he said that the verdict was a declaration ““in support of the academic freedom to debate religious ideas. The fragile liberty to question and critique theological teachings is, I believe, of desperate importance at this troubled juncture of rising religiously-motivated violence and persecution.”
And earlier, Keith Starmer, former DPP for England and Wales, had also said that:
“The distinction between ‘offensive’ and ‘grossly offensive’ is an important one and not easily made. Context and circumstances are highly relevant and, as the European Court of Human Rights observed in the case of Handyside v UK, the right to freedom of expression includes the right to say things or express opinions ‘that offend, shock or disturb the state or any section of the population’.”
It is also worth noting that in n Chambers v DPP  EWHC 2157 (Admin), the Lord Chief Justice made it clear that:
"Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by [section 127 of the Communications Act 2003]." As Jersey has no definition of "grossly offensive", it is important it adopts UK guidelines and examples from case law rather than being in danger of ploughing its own furrow. It has been stated that it would like to UK case law, but the AG would be able to make his own mind up. In my opinion, this puts too much power in the hands of one man, and even a local judiciary is much smaller and less able to avoid localism in its biases than the UK. It may not be perfect, but setting out guidelines would be a good start.
Loss of freedom of speech is the first step to dictatorship By Sarah Ferguson Currently the Economics and Home Affairs Scrutiny Panel is considering the amendments to the Telecommunications Law. The rationale for preventing cyber bullying and revenge pornography is quite understandable. However, there is a problem with the Law, not just with the amendment but also with the original version passed by the States in 2002. There are two phrases which are extremely subjective and raise concerns in the context of freedom of speech.
The first is “grossly offensive” and the second is “any reasonable member of the public”. These are highly subjective. What may be grossly offensive to one person may not even bother another. And who is a “reasonable member of the public”? Reasonable for one may be totally objectionable to another. There are assurances of a high bar but, again, that is subjective.
Such subjectivity is too loose to be included in the Law and could well encourage further political correctness in the future. After all, as George Washington said, “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.”