Twitter and the Right to ‘Menacing’ Jokes

In January 2010, Paul Chambers expressed his annoyance at the closure of his local airport on Twitter, with the comment, ‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’ He was arrested a week later and questioned while police seized his computers and phones, and was subsequently charged under the Communications Act 2003.

 Section 127 [http://www.legislation.gov.uk/ukpga/2003/21/section/127] of the Communications Act makes it an offence to send ‘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.’ A District court judge found that although the case was unusual, he was satisfied that the message was of a ‘menacing nature on the context of the times we live in.’ Chambers was fined £1,000, and his appeal to the Crown Court was dismissed.  Although Chambers argued that the tweet was a joke or a parody, the Court found that an ordinary person reading the comment would perceive it as menacing, and that Chambers must have been aware that his message could be taken as menacing in the context of the current climate of concern about terrorism. Chambers is now taking the case on appeal to the High Court, where the extent of his right to freedom of expression under Article 10 of the ECHR is expected to be discussed.

 Section 127 has been the subject of High Court rulings in the past. In DPP v Collins [http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060719/collin.pdf], a 2006 case, the Court noted that, ‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’ As such, the section itself is not inconsistent with Article 10.

 Matthew Flinn of the UK Human Rights Blog [http://ukhumanrightsblog.com] writes that whether Chambers’ rights under Article 10 have been breached may turn on the lower courts’ having interpreted the word ‘menacing,’ or perhaps the mens rea aspects of the offence, too broadly. Users of Twitter and others have reacted strongly against the finding, understandably concerned that their right to freedom of expression on the site has been undermined. Posts on Twitter are regularly irreverent in the same way that Chamber’s quip was intended. The rules of communication via online networking sites remain amorphous, and have thus far allowed for freer expression than is accepted in many traditional mediums. The High Court case, when it is heard, will be an important decision made in an area that has evolved without regulations keeping apace.

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