Twitter Joke Trial

On 27 June 2012, the Lord Chief Justice of England and Wales ruled on the case that has come to be know as the Twitter joke trial.

Paul Chambers had been convicted for sending a tweet that jokingly threatened to blow up an airport. In overturning the decision the High Court concluded that a tweet that is clearly a joke and is intended and perceived as such is not ‘menacing’ and thus is not a criminal offence.

This is an important case for basic rights of free speech and the operation of the internet as we know it.

For the details of the legal reasoning behind the judgment see below [note that this summary is not written by a lawyer and should not be taken as legal advice].

The case is formally knows as Paul Chambers v. Director of Public Prosecutions (Chambers v. DPP). The case involves a tweet sent by Chambers on 6 January 2010 that read:

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!!

Chambers was convicted on the grounds that he contravened Section 27(1)(a) and (3) of the Communications Act 2003, the key element of which states:

(1) A person is guilty of an offence if he –

(a) 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

That is, the case and the appeal turned on whether the message was of a ‘menacing character’ (though a number of sub-points of law also came into it).

There has been some comment in the UK Law blogging community about this case. Overwhelmingly the judgment has been criticised. Notable among the commentators is David Allen Green who as well as a blogger, podcaster, and writer for the New Statesman magazine also acted as Paul Chambers’s solicitor in the case. Mr Green’s Jack Of Kent blog contains a page of links for background and commentary on the case: http://jackofkent.com/2012/06/twitterjoketrial-appeal-round-up-of-key-links/

Is Twitter a public electronic communications network

The section of the Communication Act in question in this case applies to a ‘public electronic communications network’, thus one question before the court was whether a Twitter message fell under such a definition as the lower courts had believed.

Those familiar with Twitter should note that the message was sent in the public timeline and hypothetical questions of whether it was a locked / protected account (one that is only seen by ‘followers’ and is not on the public timeline) or a DM (a Direct Message that is private between two parties and also not on the public timeline)were not considered as while they may be of practical interest and legal interest in other cases they were not relevant to the question of law under consideration.

The defence argued against Twitter being a public electronic communications network on the following grounds:

  • The tweet was found by a subsequent search, thus should be seen as ‘content’ on a social media platform
  • Twitter is a private company, whereas an earlier definition of a ‘public electronic communications network’ was “a service provided and funding by the public for the benefit of the public” – which means the focus of the act is the telephone network

The High Court rejected these arguments, noting:

  • A public twitter is available to all that have access to the internet i.e. the public
  • Twitter relies on and is accessible by the internet which is publically funded, hence the ownership of Twitter is immaterial
  • Whether something is read at the time as a ‘message’ or later as ‘content’ is immaterial to the question at hand
  • While the tweet may have been intended only for followers it could be access by anyone that looked at the public timeline

In summary: Twitter is a public electronic communications network.

Was the message ‘menacing’ ?

The definition of ‘menace’

The second key element that the High Court considered was whether the message was menacing within the meaning of the act. Here the High Court noted that English law has very little analysis of ‘threat offences’. Thus having first established that the Communication Act was not intended to create any new ‘interference’ with freedom of speech, the High Court considered the arguments relating the ‘menace’:

In the lower courts the prosecution had argued that:

  • Whether a message is menacing should be determined simply by looking at the message, its context, and the short Oxford dictionary definition of menace “a thing threatening danger or catastrophe; a dangerous or obnoxious thing or person; a great inconvenience”

The defence argued that for a message to be menacing:

  • One must be able to objectively determine that it would an ordinary person would be ‘influenced or made apprehensive’ by it
  • It must be perceive as an immediate threat

In a broader summary of position council for the defence John Cooper QC stated that if we assume the tweet was a menace and criminal

[then] If that be the case, and I don’t mean to be flippant, John Betjeman would be concerned when he said ‘Come, friendly bombs, and fall on Slough’, or Shakespeare when he said ‘Let’s kill all the lawyers’.

Terrorism and other ‘threats’

Both the Crown and the High Court noted that part of the context that should be taken into account when looking at the status of the message is the climate of possible terrorist threats. However, the High Court noted that the offence is related not to the ‘inconvenience’ which the message may have created but rather to the threat.  The High Court expanded on this latter point noting that the message did not “represent a terrorist threat, or indeed any other form of threat” for the following reasons:

  • The message was on Twitter for widespread reading as a conversation piece
  • While the message uses the word ‘you’ (meaning those responsible for the airport) it was not sent to the airport, airport security or any public security service
  • The effect of terrorist threat would be to close the airport but the sender clearly wanted the airport to be open
  • The sender of the message was readily identifiable which is not characteristic of terrorist threats
  • While terrorists do send warning messages, they don’t tend to send the messages to the general public (in this case followers or anyone looking at the public timeline) which would give them ample time for the threat to be reported and acted on

Menace

While the High Court granted that to be menacing the message did not have to be an immediate threat it examined the pattern of evidence related to the message, notably:

  • If the message was a threat then, given the current context of terrorism etc, it would be reasonable to think that someone would report it. But no one did
  • The staff that found the message (when searching for messages about the airport) would not be influenced by the character of the sender (as they did not know who send the message or the conversational context in which it occurred) yet even the security staff showed no urgency in reporting the message and took no action to protect the airport
  • The airport police took no action
  • The South Yorkshire Police concluded that the sender posed no threat

Some people

The High Court noted that the Crown Court had put disproportionate weight on the fact that the sender, when interviewed, agreed that ‘some’ people might react to the message in a certain way – though the sender did state the message was a joke. This the High Court found, to be problematic as ‘some’ people includes those that may not be reasonable in their reactions and noted that the admission added nothing to the question of whether the Tweet was menacing.

State of mind

The High Court’s critical decision, outlined above, was that the message was not menacing – hence as a matter of law the sender’s state of mind is not relevant to conviction. However the case highlighted that there was no settled opinion about intention as a matter of law in this element of the Communications Act, so the High Court briefly commented upon it. That is, it had been argued that were the message menacing under the Communication Act it was not relevant whether the sender intended it to be or not.

To put it another way, one could send a message completely innocently but if someone read it as a threat then under the Communications Act this may be a criminal offence. If this were the case, as the early judgments seemed to be indicating, then the whole nature of online communication may be viewed in a very different way than most people do view it. The High Court also noted that the law would be left in an unusual state as the legal states of intention behind a message sent in one format would be different from that in another (because of the scope of the relevant section of the Communications Act).

In addressing the point, the High Court quoted Lord Bingham  (DPP v Colins – a case that dealt with the idea of ‘gross offence’), who stated:

… Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage.

In summary the High Court noted that intention should be taken into account and in the case that something is intended as a joke “even if a poor joke in bad taste” then it’s unlikely that sufficiently criminal intent could be established.

One might sum up the High Court on this matter by noting that a joke can be bad but not criminally bad.

Conclusion

The High Court overturned the conviction of Paul Chambers because, as a matter of law, the tweet was not a menace. To quote an early passage in the opinion that sums up the court’s position:

So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character.

tVPN Commentary

This is a highly important case in the history of internet law. The position that lower courts had left the law in was that a tweet could be a criminal act if there was someone that might find it menacing, almost irrespective of all indications otherwise including the intention of the tweeter. Given that twitter is a place where semi-public conversations go on around the world and that these often get heated or move into dark humour or can simply be misread by those that ‘overhear’ them, the original judgments appeared to create a great threat to the right of freedom of speech and the very character of internet use. Whereas the High Court has taken a simple and pragmatic view about how real people actually use the internet and how people read information on it.

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