Economics, Politics and Public Policy

DISCLAIMER: NOTHING CONTAINED HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE, IT IS MERELY MY OPINION ON A PARTICULAR JUDGEMENT AND THE STATE OF ENGLISH LAW AT PRESENT. I AM NOT QUALIFIED TO PROVIDE ADVICE ON LEGAL MATTERS (Especially not UK law). IF YOU FEEL THAT ANY PARTICULAR PART OF THIS POST STRAYS TOO CLOSE TO LEGAL ADVICE PLEASE CONTACT ME @shabouwcaw AND I WILL REMOVE THAT SECTION AS SOON AS POSSIBLE.

I was really interested when David Allen Green (@JackOfKent) started posting about the #twitterjoketrial. To me it seemed an anachronistic judgement that displayed both ignorance of the medium and of the law Paul Chambers was prosecuted under. For background do check out Davids blog, it really is excellent. The judgement can be found here and the details of his upcoming appeal are here

Public policy issues are often overlooked when articulating judgements, I think there has been a separation of powers misunderstanding here.

If you examine the burden created by the present judgement it is too onerous to be intention of the legislation. This is, in effect, the creation of a new scope and breath to the legislation that cannot possibly be in the interests of public policy.

Firstly, the law is obviously (by common sense and as a reasonable person would interpret it) intended for closed and monitored mechanisms of public communication, more akin to the traditional radio broadcaster or telephone network, where both input and output can be monitored easily and there is a recognised end user and intended target. (I will return to intentionality later)

The reason for this is purely public policy. In these closed systems there is relative inability to select away from this particular communication method if it should turn offensive or threatening. The personal or controlled nature of these technology (and the pernicious harms arising from the invasion of life using them) imputes a higher standard than mere free speech, which is the intended problem that this legislation is to fix.

Secondly, the burden placed on the courts, the police service and the public to carry out the duties placed on them by this judgement necessitates clear language to give them that burden. If the intention of the legislation was to create such a burden it would explicitly state that. The act makes no such explicit imperative. What imperative am I talking about?

There is a plethora of content on the internet that is offensive, malicious, intended to provoke hate, intended to provoke criminality and that is pornographic or in other ways “immoral”. Where appropriate the State has taken steps to criminalise such activities on the internet. However, if this judgement is allowed to stand it places a burden on the police to monitor and record all tweets that could full under the banner of being “malicious” and to press charges. Otherwise they are not doing their duty to uphold the law and leaving Twitter users to flout our legal rules with impunity.. Obviously had this been the intended consequence of this legislation it would be expressly stated. This is a ludicrous burden to place on the police and amounts to nothing more than judge made law in the manner of DPP v Shaw (1962) HL and an ex post facto re-jigging of the law for convenience.

“The vigour of [the] juristic and professional controversy [after Shaw's case] is a salutary reminder that ex post facto punishment is still a problem even in the legal order which was the progenitor of 'the rule of law' ” - Stone

Thirdly, examine the internet. Examine Twitter in particular. It is not akin to radio broadcasting, if anything it is the nearest thing to a conversation in a pub that technology has been able to replicate. There are two things that flow from this – the interpretation of the word “menacing” that is appropriate in this sphere and the end user/blue sky dichotomy.

Mr Justice Jonathan Bennett submits that in order to be “menacing” something must just be of an inherent “threatening” quality. I would politely disagree, using loitering as an analogy. The vague “threatening” quality of remaining in one area was seen as not sufficient to override the constitutional rights of citizens in Chicago v. Morales, 527 U.S. 41(1999) to stand around in any area of the United States. However, loitering with intent is still held to be constitutional. Why is that? Because merely looking scary is perfectly within your rights. In order for something to move beyond an acceptable subjective interpretation of “threat” - we examine the intention of the act that is being called “threatening” and see if it is to cause a threat that is unacceptable. The reason for the emergence of mens rea in the criminal law is to stop subjective misunderstandings taking shape in the legal system and convicting people of “threats” that were in fact completely innocuous. The public hysteria that surrounds so many aspects of the criminal law is just one reason for needing such protections. I would propose that in this instance the mere existence of the form of the tweet is not an inherent menace. The intention of the tweet must be considered when examining the menacing qualities of the communication, again for public policy reasons.

Lastly then, the difference between an end user and a blue sky based communication. In the case of menacing phone calls there is obviously an intended target and a pernicious harm to that person that they cannot opt out of. In the case of a menace transmitted by conventional television or radio there is a reduced ability to select away from this menace, to ignore it and to go about your business. This is the reason why there is an enhanced duty on people who operate and use these services to prevent against the transmission of content that may be construed as menacing. However in this instance, the point of Twitter is to communicate with a void. Tweets, other than @replies, are aimed at the cloud and not to any one particular person. They are intended to be read by any one of the rag tag bunch of people who follow you. It is as if Paul Chambers had written his message on a sheet of paper, put it in a bottle and let it drift out to sea. Should he be accountable for the emotions of the person who chances upon it and reads it? If a tweet falls in a forest, does it make a sound? What Paul Chambers is in reality being penalised for is not making the tweet, but for being unfortunate enough that a certain individual read it. This is hardly a fair basis on which to put forward criminal charges.

The final characteristic of the Internet, and Twitter in particular, is that content is easy to ignore or screen out. This is completely dissimilar to the types of communications that were intended to be covered by the act. The particular “menace” of this tweet is obviously understood by Bennett J to be the causing of externalities to those who read it, namely fear and unease. “The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel.” However it is completely disingenuous to suggest that a tweet would bring about these reactions. If this was said on the radio or if Paul Chambers had rang Robin Hood airport to make the threat there would be a sufficient proximity between the general public and his act to say that any fear caused was his fault. It is also incredibly difficult to put distance between the chance of you encountering the tweet (should you not wish to) and yourself due to the limited number of radio stations or the fact that he is targeting your individual phone. But in the case of Twitter, you must take active steps to encounter the tweet. As I said earlier, it is like a conversation in a pub. If you were a particularly devout person, it would be remiss of you to scold someone for swearing if you were eavesdropping on their conversation, because had you not taken the step of listening in, you would not have overheard the swearing. That's not a perfect analogy, but it is close enough. In order to have encountered Paul Chambers tweet you would have to follow him, google him or google something sufficiently close to the content of the tweet and, in addition to that, choose to read that particular entry. Rather than being forced into the “menace” by factors beyond your control, you have taken active steps to encounter that menace. I don't think it is too much to ask that a certain spirit of caveat emptor should apply.

Bennett J has only succeeded in formalising the burden on twitter users into an unwieldy pseudo-journalistic code of conduct that he has not even had the grace to define. He has left the law regarding these “breaches” wide open with no clarification as to what defines an unacceptable tweet and what defines a menacing tweet. He has placed a ridiculous burden on law enforcement, used powers that do not exist within the legislative framework he is working in and created the worst kind of judge-made law. I leave you with a quote I think is pertinent.

“Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that.”

Lord Reid, DPP v Shaw