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
Ergo
All tweets are menacing

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.