10 Oct 12 | Uncategorized
I spent the morning at the Crown Prosecution Service’s offices in London, taking part in a round table discussion on guidelines for prosecuting offences committed on social media and emphasising recent prosecutions impact on free speech.
The consultations, chaired by DPP Keir Starmer — the most senior prosecutor in England and Wales — are taking place in a week when social media prosecutions are very much in the news. On Monday, Matthew Woods was sentenced to 12 weeks in prison for unpleasant, distasteful remarks on Facebook about missing Welsh schoolgirl April Jones. On Tuesday, Azhar Ahmed was given community service and a £300 fine for suggesting — again on Facebook — that British soldiers should burn in hell.
Index condemned these prosecutions and that of Paul Chambers, whose quip that he would blow Doncaster’s Robin Hood airport “sky high” landed him in deep trouble before the Lord Chief Justice ruled that his joke should be taken as just that.
It’s clear to many that there is a problem with the law and social media, in particular the use of Section 127 of the Communications Act, which states that a person is guilty of an offence if she “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.”
At the meeting today, the DPP seemed to share Index’s unease with the use of this law, pointing out that its genealogy dates back to the 1930s, and laws to protect telophone operators from abuse.
This was certainly encouraging to hear. But Starmer was keen to point out that prosecutors can only work within the existing laws — it is up to others to change the law.
What was not so encouraging was his view of the Lord Chief Justice’s opinion offered in the Twitter Joke Appeal.
In his ruling (par 28), Baron Judge commented 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 not be interfered with by the Communications Act
Many of us had hoped that this ruling would set a precedent, or at least provide guidance for police and prosecutors in future cases. But when I raised this with the DPP today, he suggested that he did not feel that the Lord Chief Justice had any intention of that principle being extended beyond the specifics of the Twitter Joke Trial.
To me this seems odd, as it is clearly a comment on the broad purpose of the Communications Act.
This point can be stressed when the CPS launches its public consultation in November.
On a slightly more positive note, the DPP was willing to entertain the idea that “not intended to be taken seriously” could be seen as a mitigating factor in decisions on whether to prosecute.
There were some other notable aspects in the meeting.
As Dan Sabbagh has reported and I can confirm, the DPP seems very keen on greater involvement/responsibilty for Internet Service Providers in policing content. But given the broad nature of the term “service provider”, this could prove difficult to pin down (as a representative of the Internet Service Providers’ Association pointed out).
The DPP also was keen to look into the distinction between a “victim” and an “offended bystander”, in cases where endless retweets and media attention can suddenly escalate a mere tweet into a national news story.
It’s hugely important for anyone who uses the web but especially those with a Facebook or Twitter account that the CPS gets this right. The future of free speech is at stake.
Padraig Reidy is News Editor at Index on Censorship
08 Oct 12 | News and features
Lancashire man Matthew Woods has been sentenced to 12 weeks in a young offender’s institute for making some very poor jokes.
It’s hard to know what to say after that.
Woods, 20, was arrested after posting jokes about missing Welsh schoolgirl April Jones on his Facebook page last Thursday. An angry mob reportedly later gathered at his house in Chorley, and he was taken by police at a separate address (quite possibly for his own protection).
According to reports, Woods was charged under sec 127 of the Communications Act — the same law, readers will recall, that Twitter Joke Trial defendant Paul Chambers found himself on the wrong side of.
It is worth noting that in his judgement on Paul Chambers appeal, the Lord Chief Justice made it quite clear that the Communications Act should not diminish
“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”
But it has been used exactly to diminish Woods’s right to express unpopular, unfashionable and distasteful humour.
The “unfashionable” and “unpopular” elements of Woods’s comments and subsequent conviction bring to mind Liam Stacey’s conviction after he tweeted stupid comments about footballer Fabrice Muamba. Just as the nation then was apparently united in sympathy for the collapsed footballer, so now we are united in grief with the people of Machynlleth. Woods would appear to have been found “guilty” of crimes against taste and against sentiment.
We cannot allow this to continue. No one should be put in prison for making a joke that other people don’t like.
This week, the Crown Prosecution Service is consulting interested parties (including Index on Censorship) on whether new guidelines for prosecutions of social media cases are needed. This case goes to show how desperately urgent this reform is. In the past on this blog, we’ve bemoaned the something-must-be-done attitude that can lead to these cases coming to court. But now we have to say it ourselves: Something must be done about these absurd prosecutions. They are a danger to free speech, and a danger to the web.
ALSO READ: How do we legislate for social media?
08 Aug 12 | Uncategorized
Red faces over at the Crown Prosecution Service and the Metropolitan Police, as a jury took under three hours to clear former aide to London Mayor Boris Johnson , Simon Walsh of a string of charges brought under “extreme porn” laws. Indeed, were Twitter an accurate reflection of the nation’s views on a topic, Keir Starmer, Head of the CPS and all those involved in the prosecution would this afternoon be looking for new jobs: such has been the mix of disbelief and outrage that public money and police time should be wasted on footling state attempts to interfere in the private lives of consenting adults.
The case began last April when Police arrested Walsh, a barrister and one-time hopeful for the post of Lord Mayor of the City of London, on charges of possessing extreme pornographic images. Or more precisely, of possessing images that, contrary to Section 63 of the Criminal Justice and Immigration Act 2008 were taken for pornographic purposes and depicted realistic scenes of acts causing harm or likely to cause harm to one or more of the participants.
For the last 14 months, Walsh’s life has been on hold, as he waited for the case to come to trial. He eventually got to court in London last week, with the jury quickly being immersed in what probably felt like far too much information about certain sexual practices. In particular, the use of urethral sounds in erotic play — the insertion of medical equipment inside the urethra — and anal fisting.
Since it didn’t appear as though those participating in the action had actually come to any real harm, it was left to medical experts called by the prosecution to attest to how, in the wrong hands, such techniques could result in harm. Against such an assertion by one expert, Mr Vivek Datta, consultant colorectal surgeon at Guys & Thomas’ NHS Trust, was ranged the much more telling results of the Gay Men’s Sex Survey taken in 2006 and handed out at sexual health clinics.
This found that some 12.8 per cent of those asked had participated in fisting, which, crudely extrapolated, suggested that the number of men participating in fisting in London alone could be close to 30,000 in a year.
There followed expert evidence for the defence from Dr Clarissa Smith, reader in sexual cultures, and Chris Ashford, reader in Law and Society, both at the University of Sunderland. Dr Smith argued that the images in question were not strictly “pornographic”, disputed a CPS claim that those who attend sexual health clinics were more likely to engage in risky sexual practices than the rest of the population and flatly rejected argument by the CPS that she would take a different view if the images in question involved women.
She was then subject to an astonishing personal attack as prosecution counsel, in summing up, described the evidence she had given as “disingenuous, self-serving and dishonest”. But in spite of the prosecution’s efforts, Walsh today walked free from court.
So where does this acquittal leave the law? On the plus side, it continues a trend, now well established, that with proper defence, juries do not on the whole agree with state nannying — or the view that the CPS has a right to dictate what images consenting adults may view in private. Particularly when those images are of acts that are themselves wholly legal to carry out.
However, the trend in extreme porn convictions continues to be sharply upward: over 1300 last year as opposed to the 30 per year that civil servants estimated would be the going rate when the law was first mooted in parliament. That does not include the number of cautions, which, despite counting as criminal convictions, do not figure in the stats.
In practice, it is not so much an extreme porn law as a kind of “dangerous dogs” act — since the bulk of convictions (over 90 per cent) have been obtained in respect of possession of images of bestiality — often a result of someone receiving an image from a friend and failing to delete it before the police happened to look at his phone.
That trend is repeated in this case, where there was some doubt as to whether Simon Walsh had ever actually looked at the images in question.
However, the effect of this law is pernicious. It doesn’t seem to have done much to stem the tide of porn that so many politicians obsess about. It has given police and prosecution another stick with which to beat the unwary — and to punish them should they not be punishable for any other crime.
Those who merely read the court reports may not fully get the devastation that such cases cause to individuals. And this devastation is a fact wilfully exacerbated by the CPS, who frequently insist on putting individuals through months of pre-trial angst before withdrawing the charges in the first hour of the trial.
As happened to one charge in this case: a suggestion that a picture that Walsh possessed of a man in a gas mask could also constitute extreme porn.
For all that this result has been embarrassing to the CPS, they continue to make progress on what is beginning to feel like a serious moral agenda at the heart of their practice. Calls for review of prosecuting practice have followed swiftly. Ian Dunt, of politics.co.uk, thinks it is time to look again at the culture within the CPS: Ben Goldacre wonders aloud whether it is mere coincidence that a lawyer who has made a career of bringing corrupt police officers to book should be the target of such legal manoeuvring, also suggesting “we need an inquiry into why CPS and police keep bring these [cases]”.
Lawyer and New Statesman blogger David Allen Green Tweeter Mike Ward @Schroedinger99 suggested that the CPS should spend more time worrying about mens rea and less about men’s rears.
Still, there is something worrying about the course that this trial took. The extreme porn law, lest those with short memories forget, was initially introduced to deal with images of extreme harm — actual or potential — in a sexual context.
We have already seen, in the Video Recordings Act, how judges are capable of shifting the goalposts, making “potential harm” the yardstick by which cases are to be judged — although again, it is a selective sort of potential, that prosecutes images of fisting but leaves the “potential harm” of ultraviolent films untouched.
But one further disconcerting element arose in the judge’s summing up today: for “harm”, which in the original conception of the law was clearly the depiction of physical harm can now refer to “physical, mental or moral harm”.
In other words, the CPS may have ended losing this particular battle and looking like asses — but in the longer game, the policing of private sexuality, they have just notched up a signal victory.
*David Allen Green points out in the comments that it was Mike Ward who came up with the mens rea/mens rears joke
The trial was tweeted by Simon Walsh’s lawyer Myles Jackman — who blogs as Obscenity Lawyer — and legal researcher Alex Dymock
Jane Fae is a writer who has made her focus the intersection of the law, IT, policing – and sex and sexuality. She can be found regularly writing on issues of individual and sexual liberty, with a distinctly feminist tinge. She is also a national co-convenor for Consenting Adult Action Network. You can follow her on her blog or on twitter: @JaneFae
06 Jan 12 | Uncategorized
Calm down dears, as David Cameron might have said. The row yesterday over Diane Abbott’s remarks about “white people” shines a light on not just British attitudes to race, but also on our ability to absorb and deal with controversy in the era of instant communication. The wisdom – or lack of it – shown by the MP for Hackney North and Stoke Newington, aka “leftwing” or “firebrand”, has already been discussed enough. The only tuppenceworth I will add on that score is that she seems stuck in a time warp of 1980s clichés and lazy assumptions. If she had said what she had said in the pub, or more likely at a north London dinner party table, her interlocutors might have agreed with her, challenged her or castigated her. Then they would have poured themselves a glass of chardonnay and moved on.
What is more discomforting was the hysteria that surrounded Abbott’s tweet. Twitter is used for differing reasons. I relish looking at it several times a day to find out what is being said and written. I find it useful to see what free expression events are taking place and what organisations in the US, Europe, Asia and beyond are discussing. It’s a fabulous tip-off service or, to use the journo-jargon, news aggregator.
I use it to draw attention to a piece I’ve written, or broadcast that I’ve done, or sometimes to comment on an issue of the moment. I’m not interested in droning on about walks on Hampstead Heath, how my beloved Chelsea are doing (not very well) or getting into manufactured spats with people. But many people are – and they are followed by more people than I am – so good luck to them.
My journalistic training came from the Reuters news agency, where we were schooled in reducing everything into a maximum of 30 words – who, what, where, when, why and, most importantly, so what? I remember fondly an exercise in which we had to summarise War And Peace to that length. Concision has great merits (one needs only to scroll down a long, turgid email to separate out those who can marshal arguments quickly and those who cannot), but what concision struggles to do is to provide context.
To strip it back to the first principles, freedom of expression is trumped by other considerations only where the context demands it. To use that time-honoured example: when anyone shouts “Fire!” in a crowded theatre. It is not because they shout “Fire!”, no matter how crass that might be, but the fact that a crowded theatre could lead to a stampede. As the human rights and free speech campaigner Aryeh Neier points out, Americans base free expression on context. On the issue of race, is an offensive remark likely to incite hatred or violence? The Europeans (and increasingly the British) take a more literal view where the words themselves constitute the transgression.Remember the Robin Hood airport case? Two years ago today, a trainee accountant, Paul Chambers, sent a tweet to his 600 followers, joking about the closure of his local airport in Doncaster because of bad weather. “Robin Hood Airport is closed. You’ve got a week… otherwise I’m blowing the airport sky high!” The following May, he was convicted under the Communications Act 2003 of sending a menacing electronic communication. He lost his appeal.
His case attracted wide public attention, with a number of celebrities rallying to his cause, and thousands of people re-tweeting his tweet in solidarity. None of them fell foul of the law. Again, context should have been the key. Was this man really planning a terrorist act or encouraging one? A cursory investigation by the security services would have found that out.
Twitter is fun, fast and furious. It manages to be a marketing tool and a democratiser at the same time, with public figures chatting away with the public whenever they are minded, or provoked, to do so. The hullabaloo around the opening of an account by Rupert Murdoch this week and the opening of a later-to-be-discovered fake account in the name of his wife, Wendi Deng, testifies to the febrile nature of it all.
Too often, Twitter militates against the development of an argument beyond the soundbite. It creates the need for a reaction, demanding the shrill in order to be noticed, only to cut down the offender on a whim. Politicians took some time to adapt to the advent of 24-hour television news in the UK more than a decade ago. First they under-estimated its value; then they over-reacted to its power. They now have a slightly (only slightly) more balanced approach to it.
The same should surely apply to social media. Some people may enjoy getting into a tizzy hundreds of times a day. We are in danger of losing the tremendous advantage that this technology brings in our rush to instant judgement. For politicians such as Ed Miliband to react so portentously to an off-the-cuff remark suggests, yet again, that reflection loses out in modern media land. And it has taken me more than 140 characters to say so.
John Kampfner is the chief executive of Index on Censorship
This piece originally appeared on The Independent on 6 January 2012
