If Paul Chambers’s conviction is allowed to stand, what should we not do in future?

STOP STOP STOP STOP PRESS Victory! 27-07-2012 Paul's conviction overturned. CPS are not going to appeal.
STOP STOP STOP PRESS Result of the 26-06-2012 hearing tomorrow at 09:45 27-07-2012
STOP STOP PRESS Third appeal (I think - I'm losing count) goes to penalty shoot-outs between an odd number of judges in court tomorrow 26-06-2012.
STOP PRESS Second appeal non-verdict announced today (28-05-2012): the judges can't agree on a verdict. The two High-Court Judges concerned have been thinking about the question I examine in this post for three and a half months and they can't even decide what the law is. This begs the question even more strongly than I beg it in the post below: How on earth are mere mortals, with no legal training, supposed to know how to obey the law on tweeting when it comes to the 2003 Communications Act?
Part of the function of the justice system is “pour encourager les autres”.

If I read in the newspaper that a "Paul Chambers" has been convicted for (say) using a hand-held mobile while driving and I wish to avoid a similar fate I can draw the inference that, if driving, I had better not use my mobile (at least without a “hands-free” kit) or, conversely, that if I am using a hand-held mobile, I had better not drive.

In January 2010, his travel plans frustrated by snow, Paul Chambers posted the following piece of hyperbole on Twitter:

"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!!"

and was arrested by anti-terrorist police – so alarmed that they waited a couple of weeks before bothering to take any action. [ref]

At his subsequent (original) trial on 2010 May 10 Paul was convicted of "sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003"[ref]. This conviction was upheld at appeal on 2010 November 11 [ref].

Paul goes to the high court today (2012-02-08) to try and overturn the previous two judgments [ref].

But let’s assume Paul loses (again). What inferences can I draw? What should I, henceforth, not do if I wish to avoid a criminal prosecution and avoid losing my job and becoming unemployable?

Perhaps (if there is any doubt about the content of what I wish to impart) I should avoid ringing up airports or sending them emails? But Paul did not do either of these things. He posted on “Twitter” (essentially a website which anyone can view). Paul did not even “mention” Robin Hood Airport (using @RobinHoodAirport or whatever their “twitter name” is – if indeed they have one). But apparently this still constitutes “sending a public electronic message”. So I suppose (subject to an appraisal of what I wish to say) I must never submit anything to the internet or the phone networks or radio networks.

So that part of the equation is clear enough. When it comes to modern technology, there is apparently no distinction in law between sending a message to someone and simply saying or writing something. This seems a bit different from the days when there was all the difference in the world between (say) sending someone a letter and (say) writing something in a newspaper.

But now comes the tricky bit. How — assuming I do not wish to eschew all use of telephony, radio, or internet (and yet still wish to avoid Paul’s fate) — do I censor my productions? As we have learned, it is not enough that I don’t intend menace (or indecency or obscenity). (If Paul had intended to cause anyone to believe there was a threat to the airport, he would have been quite rightly charged under the relevant legislation rather than under the 2003 Communications Act.) Nor does the fact that nobody reading or hearing my thoughts felt any menace (or offence) help. A public electronic message can apparently be menacing per se [ref].

So how do I avoid writing or saying something that is “menacing per se” — menacing by or in itself? What does this mean? Fortunately the appeal court provided some guidance here and considered the plight of an imaginary couple travelling from Robin Hood Airport (even though the airport was closed at the time of the “threat”) who had happened upon the tweet in question [ref]. Now leaving aside the implausibility of constructing any sort of coherent narrative in which a couple begin to feel concerned about their travel plans as a result of consulting Twitter, the legal implications would seem to be clear enough: If some imaginary context can be constructed in which something I have said or written might be considered menacing (no matter how far removed this context might be from the actual context of my remarks) them my remarks are menacing.

So can I tweet “I’ll throttle my son if he doesn’t tidy his bedroom”? After all some people (sadly) do strangle their children and there could be a context in which someone might think such a remark to be menacing.

Can I tweet “My local council need a bomb under them”? Again, some people do plant bombs and there could be a context in which someone might think such a remark to be menacing.

Can I even tweet “I’ll be there in five minutes”? After all, there might be someone out there who has been threatened with violence by someone with a similar name to mine and that potential victim might read my tweet and feel menaced.

I have no idea what the answers are to such questions.

I am an IT consultant with a PhD and two first degrees and I have absolutely no idea whatsoever about what I should not do in future in order to avoid being prosecuted for sending a public electronic message that is of a menacing character contrary to the Communications Act 2003.

I fully accept that ignorance of the law can never be an excuse for breaking the law.

I refuse to accept that ignorance of the law should be a necessary consequence of the law.

[An earlier blog post of mine related to this topic]
[A template for a letter to your MP about this case]
Postscript: Having tossed and turned all night in bed thinking about this, a free RT for anyone who can see a way out of this quasi-syllogism:

All tweets are messages
Some messages are menacing per se
"Menacing per se" means "it is possible to imagine a context in which someone might feel menace if they read the text in question"
It is always possible to imagine a context in which someone might feel menace if they read any item of text
All tweets are menacing

1 comment:

  1. I think you've touched on something very important, and which is the part that Paul's critics are missing: he did not phone-in a threat to the airport at all.

    It is obviously illegal to phone-in a bomb threat, the same way that if I have a grievance with my boss and phone him and say "if you don't pay my holiday pay this week I'm going to sort you out" this could well be an illegal threat.

    This is totally diffrent from merely saying to my own friends that "if my boss doesn't pay me I'm going to sort him out." The latter is a common form of metaphor or exagerration and is never taken literally. It does not menace the person referenced and is not something any normal person sees as a real threat.

    Another example is that I often hear people on Guy Fawkes night stating how they would like to blow up Parliament. This is completely different from phoning up the Houses of Parliament and saying the same thing to the staff there. The idea that I might be 'menaced' on Parliament's behalf is absurd and meaningless.


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