Reginald D Hunter, Nadine Dorries, and the Shotgun Man

The Tweet

Was it a Joke?

Yes!

Sunny Hundal‏ (@sunny_hundal) – with whom I usually share opinions - offered the following non sequitur:

Obviously I'm not the biggest fan of @NadineDorriesMP but I don't think what she said last night was racist. It was a joke. Lighten up ppl.

Now I realize that Nadine Dorries has been accused of all sorts of irrationality and erratic behaviour in her time, but I don’t think even her fiercest critics have accused her of actually shooting (or threatening to shoot) people with a shotgun. Obviously Nadine Dorries’s tweet was intended as a joke and it never occurred to anyone of remotely sound mind to think otherwise.

But just because it was a joke does not necessarily mean that it wasn’t racist – people do tell racist jokes!

Was it Legal/Lawful?

No!

It doesn’t matter that Nadine Dorries had no intention of menacing Reginald D Hunter. It doesn’t matter that Reginald D Hunter didn’t feel menaced. It doesn’t matter that the tweet was not (in any meaningful sense) “sent” to Reginald D Hunter (@ReginaldDHunter). An extremely naive elderly couple on their way to one of Reginald D Hunter’s performances might have read Nadine Dorries’s tweet and become alarmed that shots might be fired at that performance. The tweet was and is (under the terms of Section 127 of the 2003 Communications Act) “menacing per se”.

If you think I am making any of this up or exaggerating in any way here, you need to read up on the #TwitterJokeTrial of Paul Chambers (@PaulJChambers): by me; by David Allen Green (@JackOfKent) in The Lawyer with a comment by me; by David Allen Green (@JackOfKent) on his own Blog.

Should the CPS Prosecute Nadine Dorries?

Only if they wish to contravene their own “public interest” guidelines again and make themselves look as ridiculous again as they made themselves look when they launched the prosecution of Paul Chambers (@PaulJChambers).

[NB The CPS (@CPSUK) are not generally irrational. Most prosecutions they launch are perfectly fair and reasonable. It may also be perfectly reasonable to launch prosecutions under Section 127 in cases where there was intent to menace and/or a victim felt menaced and/or a menacing message was actually sent to a victim. The CPS just made a huge error of judgement (which was compounded by the courts – who didn’t really understand the nature of Twitter) in this particular case.]

I suppose the only public interest that might be served by the prosecution of Nadine Dorries is that the pernicious nature of Section 127 (as recently interpreted by the courts – those who crafted the legislation obviously never intended it to be misused in this way) would be brought to the attention of the House of Commons. It is quite certain that such a prosecution (at least one held in front of the same judges who tried Paul Chambers) would succeed.

What was the Joke?

If the tweet had simply been: “As I looked over my shoulder, I saw a man talking to my daughter #wheresmyshotgunman”, the “joke” would have hinged on the facts that 1) as parents, we tend to be overprotective of our offspring and 2) men in general tend to be “just after one thing” when they engage with women – a somewhat sexist generalization I submit, but let’s let that go.

Now let us suppose the tweet had named a specific person (say Mick Jagger): “As I looked over my shoulder, I saw Mick Jagger talking to my daughter #wheresmyshotgunman”. Now the “joke” hinges (as before) on the overprotectiveness of parents and Mick Jagger’s specific reputation as a Lothario.

[NB I pass no judgement on whether MJ deserves such a reputation. Whereas Jonathon Ross (@Wossy) has described MJ as “an old goat”, MJ’s former girlfriend, Marianne Faithfull, tends to defend him. I merely assert that MJ has such a reputation and that this fact is enough for the “joke” to work.]

But the tweet in question did name a specific person; not Mick Jagger, but Reginald D Hunter. So does Reginald D Hunter have a reputation as a womanizer or cultivate such an image in his public performances? I’d say not. I’d say Reginald D Hunter’s public persona (I’ve no idea what he’s like in “real life” of course, but that’s not relevant here) is more that of an innocent abroad with the exaggerated manners of the American South who’d ask a father’s permission (and call him “Sir”) before taking out his daughter.

So what specific attribute of Reginald D Hunter did Nadine’s tweeted “joke” hinge on? I wonder what it could be.

So is Nadine Dorries Racist?

Probably not.

Nadine Dorries, as Sunny Hundal‏, also pointed out, has no history of making racist remarks and (in spite of all her other failings) it would not surprise me in the least if her daughter actually took up with a black man and Nadine D did not turn a hair.

But this does not mean that her tweet should be allowed to pass without comment.

Carole Thatcher is probably not really racist (at least in the way Nick Griffin is) but that doesn’t mean that it’s ok for her to call a black French tennis player “ a Froggy gollywog”.

Ken Livingstone is certainly not homophobic or anti-semitic (I remember the days when the same tabloids which have recently criticised him were castigating Ken for his “loony left” commitment to anti-racism and gay rights) but that doesn’t mean that Ken’s references to the Tory party being “riddled” with gays or his remarks about “rich Jews” should not raise our eyebrows somewhat.

Strange Fruit

To the young people studying To Kill A Mocking Bird at GCSE last year, the events and attitudes portrayed seemed like part of ancient history – or so was my impression after accompanying a group of them to a stage adaptation of the novel. Yet, as late as the year I was born, a 14 year old black kid Emmett Till was horrifically murdered in Mississippi for allegedly wolf-whistling at a white woman and many such cases are still within living memory for some older people. Although “lynchings” of black men suspected of relationships with (or simply feelings of attraction towards) white women (which had been commonplace during the previous hundred years or so) were coming to an end by the mid 1950s, it took a lot longer for the attitudes that gave rise to such racist atrocities to wane.

I think we can safely assume that no such thoughts entered the (conscious) mind of Nadine Dorries as she wrote her tweet (in fact I’d go as far as to say that a failure to connect ideas in a coherent fashion is what often characterizes Nadine D’s public statements) but that fact does not make a joke about killing a black man who shows an interest in a white woman any less disturbing – even in 2012.

Twitter, Sarfraz Manzoor, and blocking

I've been a fan of Sarfraz Manzoor's journalism for many years and have always enjoyed his appearances on BBC 2's Culture Show (which otherwise often hosts some of the most irritating people on the planet). He has also written movingly about his own family - one piece he wrote inspired a post on this very blog a few months ago: Why I’d be more than proud to have Sarfraz Manzoor in my family.

I began following Sarfraz Manzoor a few months ago on Twitter and tweeted the odd mention, RT, or comment on something he'd written. As with most journalists I like I don't necessarily entirely agree with everything Sarfraz writes, though I've certainly never been consciously rude or unpleasant about anything he's written.

For, I suppose, a number of weeks now (I wasn't paying much attention) I had not noticed any tweets from Sarfraz Manzoor and had vaguely assumed he'd gone quiet on Twitter. The other day, however, I tried to RT something he'd said - my attention to which had been drawn by an RT or mention (I can't remember which) from a third party and found that my twitter client wouldn't let me do this. At first I thought there was some kind of Twitter glitch but, to cut a long story short, I realized that I had been blocked by Sarfraz Manzoor.

Now the only accounts I've ever blocked on Twitter were spambots and a BNP supporter who began following me - as a result (I can only assume) of a misunderstanding as great (though in the opposite direction) as the one the led to Sarfraz blocking me.

Anyway, to come to the point, and to something that might be of interest to a wider audience, this experience of being blocked by someone on Twitter enabled me to gain a deeper understanding of what blocking on Twitter does and does not achieve. This may be of particular interest for those who have suffered from bulling, harassment, or stalking on Twitter (as a couple of people I follow have been).

NB all these finding relate to Tweet-Deck, but I assume other Twitter clients behave in a similar way.

Blocking prevents the blockee from seeing the blocker's tweets in his/her timeline, but the blocker's tweets can still be followed in a separate column.

Blocking prevents the blocker from seeing the blockee's normal tweets in his/her timeline, but un-following (or not following in the first place) would achieve the same thing.

Blocking prevents the blockee from RTing the blocker's tweets using the normal mechanism provided by the Twitter client, but if the blockee simply types in "RT @blocker whatever the blocker said" this gets round the block.

Blocking prevents the blockee from replying to the blocker's tweets using the normal mechanism provided be the Twitter client, but if the blockee simply types a new tweet with a mention (eg @blocker) in it, this gets round the block - though I'm not sure whether the blocker would see this in his/her mentions.

I am also unsure as to what happens once third parties start RTing or replying to the types of tweet mentioned above, but that's not so significant.

Finally, blocking un-follows the blockee and prevents him/her from re-following the blocker. The curious thing is, however, that the blockee has no explicit indication that or when this has happened and, therefore, no way of discovering what his/her offence was (though I suppose this will often be more obvious than it was in my case).

The upshot is that blocking on Twitter achieves much less than I had (vaguely) assumed - though I confess I had never given the matter much thought until now..... oh and (in the unlikley event Sarfraz Manzoor ever reads this blog post) I'd like to apologize unreservedly for any insult I might have caused, but I genuinely don't know what that insult was.

PS Funnily enough, there was some relevant discussion of these issues on Sarfraz Manzoor's timeline yesterday (04-05-2011) - not (unless blocking is even less meaningful than I suggest above) occasioned by anything I tweeted. Sarfraz complained that he gets lots of people he doesn't know tweeting him (which makes me wonder if he's quite got the point of Twitter) & if those people annoy/bore him he blocks them (which seems a bit like taking out an injunction against Jehovah's Witnesses rather than simply politely asking them to go away - albeit while secretly thinking "and while you're at it, stick your fucking Watchtower up your arse"). It also emerged from Sarfraz Manzoor's timeline that he is easily offended by people who make jokes about his hair. I have to plead guilty here - though, in my defence, I feel inclined to point out that when I made jokes about Brian Cox's and Jim Alkhalili's hair they both re-tweeted it. perhaps, flushed with my success, I got carried away.

Anyway, you live and learn. I shall, henceforth, read Sarfraz Manzoor's articles with a slightly different perspective ...... and try and console myself that I was one of the people who annoyed him rather than one of the people who bored him ;-)

Template letter to MP regarding the #TwitterJokeTrial

I have sent an email based on the template below to my local MP using http://www.writetothem.com I hope as many people as possible will do the same.

In spite of what I say in this letter, I strongly suspect (though I pretend no legal expertise) that the real problem is not the 2003 Communications Act itself, but the perverse interpretation of that Act by the CPS and the lower courts. It will, however, take a huge amount of time and money to get this matter before a high-court judge. In the meantime I think we should press our MPs to clarify the law to prevent it being mis-used in this way.

NB It is always better if you write to your MP using your own words rather than someone else’s, but please all feel free to use whatever you like from the example I provide below - I assert no copyright!

Please be polite and avoid making personal attacks on any of individuals involved!

Dear Ms/Mr/Dr MP

I write to express my grave concern at certain provisions of the Communications Act 2003.

As you may be aware, a trainee accountant called Paul Chambers was successfully prosecuted in May 2010 for “sending a menacing message”. His conviction was upheld at appeal; the High Court Judges at his most recent appeal were unable to agree on their interpretation of the law; and Mr Chambers faces a further appeal in the High Court at the end of June this year (2012).

Paul Chambers’s “crime” was to vent his exasperation at a travel delay by making a (perhaps somewhat ill-judged and tasteless) joke about blowing up a local airport on the “microblogging” site known as “Twitter” – much as our former Poet Laureate Sir John Betjeman vented his exasperation with modern architecture and town-planning by calling for the bombing of Slough.

What is worrying about the law here is that:

1. there was clearly never any intention by the author of the offending joke to menace anyone;


2. no message was ever sent to the airport or anyone connected with that airport; and
   


3. nobody who read the joke – Paul Chambers’s “followers” on Twitter (at whom the joke was directed), the staff at the airport who found the “tweet” (by searching on the internet for mentions of their airport), or the police (to whom the tweet was passed on) – felt menaced.

If Mr Chambers really had sent a menacing message to an airport designed to make them fear he intended violence he would have been, quite rightly, charged under the Criminal Law Act 1977.

Instead, the CPS decided to prosecute using the 2003 Communications Act and the court decided that a tweet can be a menacing message under Clause 127 of that Act regardless of whether the person writing the tweet intended menace or anyone actually reading it felt menaced.

This is absurd.

There are, literally, trillions of passages of text on social networking sites and on the internet in general that could, if taken completely out of context, conceivably be found menacing by somebody somewhere. It seems that the 2003 Communications Act puts anyone who publishes anything on the internet at risk of criminal prosecution if any of his or her words (stripped of their original setting) could be misinterpreted as threatening in some fashion.

This does not only impact private individuals like Paul Chambers, commercial users of the internet are obviously impacted too. If we are all forced, when publishing things on the internet, to avoid any form of hyperbole or metaphor or figure of speech that could, if taken literally in some imaginary context, imply “menace”, we are clearly an intolerable situation.

The 2003 Communications Act obviously needs to be amended as soon as possible. I hope you and your colleagues in parliament will give this matter your urgent attention.

Yours sincerely

etc

Paul Chambers, PhonepayPlus, and Perverse Interpretations of the Law

.... specifically the 2003 Communications Act

If you follow the Excellent @JackofKent on Twitter, you will be aware that a man called "Paul Chambers" (@pauljchambers) has just been prosecuted for sending a tweet which read

"Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"

Read the full story here and here (as provided by legal blogger JackofKent) or read one of the inaccurate accounts published by the mainstream media eg here (provided by paid journalists).

Now, unlike @JackofKent, I pretend no legal expertise, but I gather that the authorities originally wanted to try Paul Chambers under legislation designed for dealing with bomb hoaxers. Now while Paul Chambers's tweet may have been in poor taste, he clearly did not intend to threaten anyone or cause them to believe he really had a bomb. Nor did anyone at Robin Hood Airport understand Paul's tweet as a serious threat or even a hoax threat. These facts seemed to rule out a prosecution under the 1977 Criminal Law Act (which actually covers bomb hoaxes) so the authorities (not to be thwarted in their attempts to serve the public interest) decided instead to prosecute Paul under the 2003 Communications Act - designed to provide powers to the regulator body "Ofcom" and thus protect the public from suffering at the hands of unscrupulous people engaged the provision of electronic communications networks and services.

Funnily enough, this is by no means the first time that perverse interpretations have been put on this act in order to achieve ends which would seem to me (as a legally naive observer) to be the exact opposite of what those who drew up this act would seem to have intended.

A few years ago tens of thousands of people across the country suddenly discovered that they were running up huge phone bills. The problem, it transpired, was rogue software that was dialling up premium rate telephone numbers (this was before the mass adoption of broadband). Meanwhile, BT blithely continued collecting money from scammed customers and passing it on to the organized criminals who were operating the premium-rate numbers and distributing the malware which rang the numbers. You can read the full story here (bbc) and here (financial-crime fighter Jeffrey Robinson).

Faced with this huge scam, the body which was supposed to be regulating this industry "PhonepayPlus" (then called "ICSTIS") whose "helplines" were "in meltdown" did absolutely nothing for about eighteen months. It finally introduced a scheme whereby firms wishing to run legitimate dialler "services" had to seek prior permission from ICTIS. Strangely, for an industry which PhonepayPlus repeatedly insists is "99% honest", exactly zero honest dialler services emerged from the new prior permissions regime.

But to return to the point of this post, PhonepayPlus has its powers delegated to it by Ofcom and is, by virtue of that fact, the body responsible for implementing the 2003 Act - insofar as that act relates to the premium rate industry. Here's what the Chair of PhonepayPlus Sir Alistair Graham (always ready to criticize MPs accused of dishonesty) had to say about the 2003 Communications act and the rogue dialler fiasco:

The investigation undertaken by ICSTIS at the time was quite lengthy due to the complex nature of the technologies involved. In the interim not withstanding the existence of complaints, BT and other Network Operators were obliged to allow them to continue operating. This obligation is set out in the Communications Act 2003.

[letter to Rt Hon Margaret Hodge MBE MP, Minister of State for Industry and the Regions September 2006]

So, according to the body charged with regulating the premium rate industry by administering the 2003 Communications Act, that act does not protect the public from the scammers, it protects the scammers from the public. Of course Sir Alistair Graham may have got the wrong end of the stick here (I strongly suspect he has) but since he is responsible for administering this act, he (I suppose) has the final say on how the act is to be used.


Sadly, rogue diallers are not the only example of PhonepayPlus's failure to regulate the premium rate industry. Anyone who has your mobile number (ie has illegally bought a list of real numbers or has simply generated a block of random numbers) can send you an unsolicited reverse charge premium rate text message and your network will charge you for it - again blithely handing the proceeds on to the scammers. PhonepayPlus insists that the onus is on the "customer" to prove he or she did not request the text (something that PhonepayPlus acknowledge would be virtually impossible) and refuse point-blank to force the networks to allow consumers to opt out of these "services".

So we now know that the 2003 Communications Act does not protect consumers against rogue diallers. Does it protect us against unsolicited reverse charge SMS? The Rt Hon Margaret Hodge MBE MP, Minister of State for Industry and the Regions certainly thinks it does. But she's wrong! According to PhonepayPlus, unsolicited texts are only illegal under the 2003 Act if they are (normally free) "promotional" texts - unsolicited reverse charge "services" (typically jokes and tarot card "readings") are merely "misleading".

But fear not. Let no one say that the "Law is an ass" (to quote Dickens) or that "when I use a law it means what I want it to mean" (to mis-quote Carroll). The 2003 Communications Act may not protect the public against premium rate crime, but it can be use to prosecute people who make poor jokes on Twitter.

I'm sure we can all sleep soundly in our beds tonight knowing that!

PS Much better MSM article from @SamiraAhmedC4 now at: Man fined for Twitter airport 'bomb threat'

PPS

On the Paul Chambers front, there is an appeal on 2010 September 24 _ I'll post the result.

On the premium rate front, PhonepayPlus have written to me to confirm that not only does the 2003 Communications Act (under which Paul was prosecuted) oblige them to allow rogue diallers and forbid PP+ from declaring the activities of unsolicited reverse charge SMS spammers to be "illegal", the 2003 Communications Act actually prevents PhonepayPlus and Ofcom from mandating the networks to allow their customers to opt out of premium rate "services" - even if the customers are minors. It would be interesting to learn which clauses of the Act PP+ rely on when they make these extraordinary claims. I may ask them.