A man turns to his friend at the pub and makes an obscene comment about a recent tragic incident. He gets a stern look from the regulars, but nothing more comes of it. What he’s done may have offended people, but he hasn’t broken any laws.
Barely 10 minutes down the road, a student makes a similarly offensive comment about the same situation – but he chooses Twitter, not the pub as his platform. The next morning he’s awoken by a summons to the local police station where he learns he’s going to be charged with a criminal offence.
So what’s the difference? Why is it ok for the man to say offensive things in a pub, but a criminal offence for the student to tweet them?
The answer lies in Section 127 of the Communications Act 2003, which states:
“A person is guilty of an offence if he 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.”
Crucially, nowhere does it say that the message must have been sent to the individual or organisation it is offensive or menacing to. This has been highlighted in two contrasting cases. First the Robin Hood airport case – where a joke tweet about wanting to blow an airport up if the weather meant the individual missed his flight, led to a case going all the way to the high court and a debate about freedom of speech. This case was eventually thrown out; with the Court of Appeal concluding that the tweet was clearly a joke and could not be considered to be a message of ‘menacing character’.
The second case – that of Liam Stacey highlights the danger of tweeting something offensive to your own followers, only for it to be widely shared and the reach multiplied thousands of times. . It’s doubtful that Stacey ever intended or dreamed that his tweet would gain such publicity or that he genuinely meant the message to reach Muamba. But the public and media outcry about his undeniably offensive comments led to him being jailed for a comment that would have been shouted down or ignored in a pub setting. Stacey has since expressed remorse and will have this hanging over him at every job interview or meeting he ever attends – surely the public shame is sufficient without the need to jail him for one idiotic decision?
A new development, and one with potentially far-reaching consequences is the comment made by Keir Starmer during a talk at the London School of Economics that retweeting a tweet found to be in breach of the act was an offence in its own right – something prominent legal bloggers and journalists are still digesting. But this raises a further question – last week many people retweeted and commented on Nick Griffin’s ‘threatening tweet’ towards a couple involved in a landmark gay rights case. Does their clear disagreement with Griffin’s actions make them safe from prosecution should the Police believe he has a case to answer?
What is clear is that much more needs to be done to examine how the existing laws can be used regulate social media sensibly and in a way that means the courts are not having to make kneejerk reactions to public outrage.
For a more detailed examination of the relationship between Twitter and the law the Guardian have put together a list of the 10 legal risks you need to consider.
This post was originally published on the 33 Digital blog