Personally, I don’t believe Satan, or God, exist, so it’s not a question I give a great deal of time to.
Salman Rushdie gave it some thought. The title of The Satanic Verses comes from an old idea that there may have been parts of the Sura that were false. Specifically, a concession to the polytheism of the pre-Islamic Meccans to whom Muhammad preached: “And see ye not Lat and Ozza, And Manat the third besides? These are exalted Females, And verily their intercession is to be hoped for.”
Muhammad was, the story goes, tricked into saying these lines by Satan. The Angel Gabriel later told Muhammad he had been deceived, and he recanted.
For Thought-For-The-Day types, it’s a nice little “don’t believe everything you read” lesson. For literary types, it may even be seen as an interesting early example of an unreliable narrator. Muhammad trusted the angel to tell him the truth: but at that moment, the angel was not who he seemed.
I sincerely doubt Northern Ireland’s Pastor James McConnell has much truck with the idea of unreliable narration. Or even fiction, for that matter. McConnell is the type of person who believes that if someone is going to go to the trouble of writing a thing down in a book, then that thing should be true.
A book? No. The Book. There is one book for the pastor. It’s called the Bible, and it’s got everything you need. You might read other books, but they’ll be books about the Book. Books explaining in great detail just how great the Book is. What there are not, cannot be, are other the Books.
So the Bible can be true, or the Quran can be true: but they can’t both be true. And if the Quran is false, but Islam claims it is true, then Islam must be wicked. Satanic, even.
In May last year, Pastor McConnell, like many of his ilk, was very exercised by the story of Meriam Yehya Ibrahim, who had reputedly been sentenced to death in Sudan after converting from Islam to Christianity. Here was further proof, septuagenarian McConnell preached to the congregation at Whitewell Metropolitan Tabernacle, that “Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell.” There may be good Muslims in the UK, he said, but he didn’t trust them. Enoch Powell was right, McConnell said, to predict “rivers of blood”.
McConnell seemed to know this was going to get him in trouble. “The time will come in this land and in this nation,” he preambled, “to say such things will be an offence to the law.”
Turns out, the pastor was half-right at least in this much. Last week, Northern Irish prosecutors announced that McConnell would face prosecution for his sermon. For inciting religious hatred? No, too obvious. McConnell, now retired and said to be in declining health, will be prosecuted under Section 127 of the Communications Act.
Section 127 is, free-speech nerds may recall, the piece of legislation that pertains to the sending “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”.
It’s the one that led to the Paul Chambers “Twitter Joke Trial” case, one of the great rallying points of online free speech in recent years. In January 2010 Chambers joked online that he would blow up Doncaster Robin Hood airport if his flight to Belfast (always Belfast!) to meet his girlfriend was cancelled. He was convicted, even though every single person involved in the case acknowledged that he had been joking, including the airport security, who did not for one second treat the tweet seriously, even as a hoax.
Chambers was convicted. Eventually, in June 2012, the conviction was quashed. Questions were raised about why then-Director of Public Prosecutions Keir Starmer had persisted in pursuing the case. For his part, Starmer launched a consultation to draft guidelines on when the Communications Act provisions should and should not be used (this writer took part in the meetings and submitted written evidence).
During that process, Starmer was fond of pointing out (correctly) that the Communications Act had been designed to protect telephone operators from heavy breathers. It had nothing to do with stupid jokes on the internet.
And it certainly had nothing at all to do with the online streaming of sermons by fundamentalist preachers.
Let there be no doubt: the prosecution of James McConnell under the Communications Act is a disgrace and a travesty. It is the action of a prosecution service more interested in appearing to be liberal than upholding justice and rights. If McConnell is suspected of being guilty of incitement, then prosecute him under that law. But the deployment of the catch-all Communications Act, in a situation it was very obviously not designed for, suggests prosecutors were not confident of that case and have instead reached for the vaguest charge possible.
When one combines this latest prosecution with the recent “gay cake” case, in which a Christian bakery in County Antrim was fined for refusing to decorate a cake with a pro-equal marriage message, it’s hard not to think the people of Protestant Ulster may, on this occasion, have some real fuel for the siege mentality that’s kept them going for so very long. It feels as if an attempt is being made to force liberalisation on Christians through the courts. It’s hard to imagine any outcome besides resentment, and Lord knows the “wee province” has enough of that already.
A recent court ruling in Ireland could have reintroduced the concept of criminal libel to the state, despite criminal defamation offences being abolished as recently as 2009.
The case itself was one of a particularly grim relationship break up. Names are not available as the people involved were also locked in a criminal case in which the male partner was accused of rape and false imprisonment, though he was acquitted of both.
But the details available are: couple breaks up in January 2011. They remain in touch. In April 2011, man goes to woman’s house to, according to the Irish Times’s report “confront her over a perceived infidelity”. Man later leaves woman’s house, but not before stealing her phone. Man goes through woman’s messages, which suggest she has started a new relationship. Man opens woman’s Facebook on phone and posts remarks from her account, making it appear that she is presenting herself as a “whore” who would take “any offers”. Drink was a factor, as the Irish court reporting phrase goes.
This action led to a charge under the Criminal Damage Act 1991, under which “A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property” can find themselves liable to a large fine and up to 10 years in prison.
In this case, the defendant was found guilty and fined €2,000.
The judge, Mr Justice Garrett Sheehan, is reported to have asked how to assess the “damage” when nothing had actually been broken. Prosecutors replied that the case was in fact more akin to harassment and that the “damage” had been “reputational rather than monetary”.
The first question here is obvious: if the facts of the case were more akin to harassment, then why were charges not brought under Section 10 of Ireland’s Non-Fatal Offences Against The Person Act, which would cover anyone who “by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other”? Wouldn’t this be the obvious piece of legislation to use?
But after that, there are a few more: Who actually owns a Facebook profile? And does reputation count as property? And crucially, has Mr Justice Sheehan created a criminal libel law?
Ireland has a complicated relationship with social media. On the one hand, to be plain about it, the big online companies create a lot of employment in Ireland. Facebook, Twitter and Google all employ a lot of people in the country. On the other hand, it is susceptible to the same moral panics as anywhere else, and in a small, largely homogenous country, panics can be enormously amplified.
When government minister Shane McEntee committed suicide in Christmas 2012, the tragic story somehow became conflated with social media and online bullying. McEntee’s brother blamed the minister’s death on “people downright abusing him on the social networks and no names attached and they can say whatever they like because there’s no face and no name”. But his daughter later refuted that claim, saying: “Dad didn’t use Twitter and wasn’t a huge fan of Facebook. So I don’t think you can blame that and I’m not going to start a campaign on that.”
The subsequent debate on social media bullying was almost tragic in its simplicity, the undisputed highlight being Senator Fidelma Healy-Eames describing to the Parliamentary Joint Committee on Transport and Communications how young people are “literally raped on Facebook”.
As ever in discussions that involve social media, a generation gap opens up, or is invoked, between younger “natives” who supposedly instinctively understand the web, and a political and judicial class who are apparently hopelessly out of touch. There is certainly an element of truth to this (I have sat in courts and watched judges express utter bafflement at the very concept of Twitter), but in general, what is actually happening is legislators, magistrates and the judiciary are desperately trying to apply existing, supposedly universal laws to phenomena to which they are simply not suited. This is where controversy usually arises, for example in the UK’s use of public order laws when the only threat to public order is a Twitter mob — as in the case of jailed student Liam Stacey; or use of laws against menacing communications in instances where it’s clear no menace was intended — such as Britain’s now infamous Twitter Joke Trial.
In the current Irish case, it seems obvious that harassment would have been the more relevant charge, but in this instance, that’s not what we have to worry about. The real concern is that by apparently putting reputation in the category of property which can suffer damage, the court has now created a precedent where damage to a person’s reputation, whether by “fraping”, tweeting, or even just the getting facts wrong in a news story, could lead to criminal sanction.
And the very worst thing is that no one seems to have noticed.
From the introduction of the new blasphemy law onward, Ireland has seen a slow, stealthy erosion of free speech. It’s not clear what will get people to start paying attention, but the country needs to be more vigilant.
How does one gauge if some online communication, especially a tweet or a Facebook post, is “of a menacing character”? How does one determine, even with an iota of objectivity, if such communication can be “grossly offensive”, or causes “annoyance and inconvenience” to another person? And, to top it all, what does it say about the reasonability, let alone legal validity, of a statutory provision which imposes criminal liability on anyone caught in its tangle? If only the legality was an issue. For, it could still be fought out in the courts. But when this provision becomes the basis for an alarming number of instances of vigilantism, spiralling into riots, then the repugnancy hits one smack in the face.
So is the case with Section 66A of India’s Information Technology Act, which reads:
66A. Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to three years and with fine.
As reported, Facebook posts are landing people on the wrong side of the law. Meanwhile, it turns out that the arrestee had the cops set upon him because he had dared criticize the chief minister, so Section 66A becomes a tool for vendetta. To make matters worse, “concerned citizens” have started forming vigilante groups to spot such online posts, and bring the offenders to justice. And as it happens in India, to buttress the allegation of “derogatory” or “grossly offensive”, in almost every case, the provisions dealing with the offences of blasphemy or spreading communal hatred are clubbed with Section 66A. If at all something could be blasphemous to the most elementary tenets of freedom of expression, this could qualify as one.
In the city of Pune, someone posts morphed images of revered historical figures and demagogues, and it sets off a communal conflagration and an orgy of vandalism, leading the police to declare that even those who “Like” Facebook posts which could be deemed “offensive” shall be booked.
Section 66A is modeled on the same lines as that of Section 127(1)(a) of UK’s Communication Act, 2003 because both seek to penalise “grossly offensive” online communication. However, the provision in the UK law was “read down” by the House of Lords in 2006, meaning the Court laid down parameters regarding how it was to be interpreted. In Director of Public Prosecutions v. Collins the Court held that the phrase must be construed according to standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. The Lords added that “there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.” That such rulings do not obliterate the vice of such provisions is proved by what by now has attained notoriety as the “Twitter joke trial”. A frustrated Paul Chambers tweeted – “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!” and all hell broke loose with the authorities mistaking this venting as one of “menacing character” and booking him under terrorism charges. The House of Lords rescued him from the clutches of the law, but not after we were painfully made aware of the perils of ambiguous legal phraseology.
Even though a constitutional challenge to Section 66A is pending before the Supreme Court, the government, instead of following common sense and unwilling to let go of its power to threaten people into silence, issued a set of guidelines in January 2013, apparently to prevent misuse of the provision. These guidelines mandated that only senior policemen could order arrest under this section. This was nothing but a fig leaf to protect an ostensibly unreasonable law, because no safeguards can protect against blatant arbitrariness when there is statutory sanction for the same.
The spate of violence and persecution which threatens to spiral out of control couldn’t have come as a more dire warning to the Indian government- that Sec 66A must be repealed sans further ado, and more criminalization of free speech.
Human Right’s lawyer, Keir Starmer, who has just completed a five year stint as Director of Public Prosecutions for the Crown Prosecution Service, has been active in drawing up guidelines for sensitive areas of criminal law.
Starmer attended a recent roundtable of arts executives Index on Censorship organised with Tate Britain. It was part of our conference Taking the Offensive: Defending artistic freedom of expression in the UK. Having heard for himself that self-censorship in UK museums, galleries and theatres is widespread, triggered by a complex range of pressures including the fear of prosecution and police intervention, Starmer advocated for the usefulness of CPS guidelines for artist expression.
The story of how CPS guidelines came into being started shortly after Starmer joined the CPS as the DPP in 2008. It deals with one of the most morally sensitive areas of criminal law, that of assisted suicide. In the case of 23-year-old rugby playing student Daniel James, Starmer used his discretion not to prosecute Daniel’s parents for accompanying their son to the Dignitas clinic in Switzerland, where he died with them at his side.
Subsequently, Debbie Purdy, who suffers from MS, approached the DPP to find out if her husband would be prosecuted if he assisted her suicide. Her argument was that if he would be prosecuted, then, in order to protect him, she would have to travel to Switzerland by herself while she was still physically able to make the journey. Effectively she would be shortening her life to avoid incriminating her husband. In response Starmer decided to draw up public facing guidelines laying out the factors the CPS would take into account to decide whether or to prosecute. There would undoubtedly be evidence against Mr Purdy to prosecute but would it be in the public interest to do so?
This year, Starmer drew up guidelines for the social media in response to a tidal wave of cases and excessive prosecutions arising from tweets and Facebook comments, including Paul Chambers’, the defendant in the Twitter joke trial. The guidelines indicate that the bar is set high – that only tweets that are “more than grossly offensive” and or “made in cases of considerable sensitivity” — should be prosecuted. Starmer quoted the case of a tweet left on the tribute page to April Jones, saying it would be likely to be prosecuted. The guidelines indicate that freedom of expression is well protected by the law, and the police are not going to get involved with every spate of offensive and abusive comments that litter the internet. As Starmer said – “you don’t need a law to protect expression that everyone agrees with”.
From a policing perspective the area of culture is uncharted. There is currently no guidance for policing cultural events, apart from a mention in Association of Chief Police Officers guidance regarding charging for costs associated with policing of music festivals and football matches. The job of deciding if a work could be in breach of the law – for example child protection, obscenity legislation, race and religious hatred or public order – is done by the police, without guidance. Compare this to the amount of guidance around policing of protest, where on every page the right to protest is repeated and stressed, and has to be taken into account at every stage of policing.
No DPP can reassure an anxious artist director that a particular piece of art work is not going to be prosecuted, though Starmer did receive several letters asking for that reassurance. But the CPS could produce guidelines for the arts and this is something that Starmer personally advocates, both as part of his general evangelism for the clarity and efficiency that guidelines achieve, and as a practical way to tackle self-censorship.
The guidelines would likely take account of the location and context of the artwork, the motivation and intention of the artist and how anyone involved in the making of the work had been treated, were permissions given, with particular scrutiny around the involvement of children and animals. They would also, and this would be very interesting part of the exercise, look at the public interest of prosecution, which would inevitably involve a debate about the wider social benefit of art that challenges taboos and pushes boundaries, including where offence is caused.
Taking the social media guidelines as a model, it is reasonable to assume that the guidelines would set a high threshold and that the legal framework would in the main support the artist’s right to free expression. This common law approach is one of several rulings in support of freedom of expression is cited:
“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…” In Chambers v DPP [2012] EWHC 2157 (Admin), the Lord Chief Justice
If the guidelines were to similarly set a high threshold for artistic freedom of expression, it could go some way to dispel the fear of prosecution and it should give a clear steer to the police when dealing with art that causes offence. In turn this would clarify the position of the arts executives when work is contested by audience, press or police and enable them to better defend their choices in the heat of a crisis.
It would also mean that people making decisions about what art goes into our public spaces could differentiate between legal and social boundaries of what is sayable. The latter are more complex, mutable and volatile and in certain cases are patrolled by special interest groups, who actively want to silence artists whose work offends or challenges, often promoting the right not to be offended.
With the Common Law ruling in mind, arts guidelines as social media guidelines would not recognise the right not to be offended, though they do acknowledge that communication that is grossly offensive has in the end to be dealt with on a discretionary basis, quoting Lord Bingham “There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.” This would seem to suggest that there is a right not to be grossly offended.
So in the end we have come full circle, back to that idea that each case has to be taken as individual, and that the DPP would be called on to exercise their discretion about whether to prosecute. But having said that the idea of guidelines is certainly very interesting and would at least put a clear line in the sand, in territory that is currently completely uncharted.
Human Right’s lawyer, Keir Starmer, who has just completed a five year stint as Director of Public Prosecutions for the Crown Prosecution Service, has been active in drawing up guidelines for sensitive areas of criminal law.