Tuesday, August 23, 2011

Another Facebook related Communications Act conviction. North Wales

I will depart from cynicism just to say that I've never been more afraid for the health of free expression in Britain. This post is on the long side, but I urge you to read it fully as it explains many of the problems encountered with the application of the Communications Act to broadcast style internet communications. A 21 year old man has been convicted in North Wales of an offence under section 127 of the Communications Act 2003 and sentenced to 4 months in prison for a Facebook update that was live for 20 minutes. It has been reported here <http://www.walesonline.co.uk/news/wales-news/2011/08/23/man-jailed-for-four-months-over-facebook-attempt-to-start-riots-in-bangor-91466-29288008/> and here <http://www.bbc.co.uk/news/uk-wales-north-west-wales-14631184>. I have sent a query to CPS Wales seeking information about the nature of the prosecution.

Unfortunately in this case it seems that someone (a former coworker) was concerned and notified her supervisor. Former coworker? Notified her supervisor? I don't get it. Perhaps there's a grudge. At any rate, that would serve as evidence that someone was menaced; however, the Communications Act 2003 s127 does not require that any person is actually menaced (or grossly offended, etc). It does not require that a message is even received. This is through a precedent that has required the prosecution in the Twitter Joke Trial to discharge a narrow burden of proof of intent to commit the offence. The precedent comes from a case before the House of Lords in 2006 called DPP v Collins, which dealt with nuisance telephone calls and voice messages. Section 127 of the Communications Act is unfortunately badly worded, in that in and of itself there is no burden of proof of intent, hence the reliance on case law. Unfortunately the remarks of one of the Law Lords has set a very low threshold for proving mens rea (guilty mind, intent). I explain this in a post from February which I quote below:

DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character.
So unfortunately while DPP v Collins provides the necessary burden to prove intent, it severely scuppers the defence by removing the requirement that a message is actually received. It sets out the need to look at a message in context, but this is of little help as it has been interpreted very broadly. It requires mens rea, but only in a very narrow sense. Paragraph 11 of Lord Bingham's opinion is where we get into trouble:

"...On the other hand, a culpable state of mind will
ordinarily be found where a message is couched in terms showing an
intention to insult those to whom the message relates or giving rise to
the inference that a risk of doing so must have been recognised by the
sender. The same will be true where facts known to the sender of a
message about an intended recipient render the message peculiarly
offensive to that recipient, or likely to be so, whether or not the message
in fact reaches the recipient...."

Now, this intuition may have made sense where the facts of the case concern a telephone call or voice message, the difference being that the communication is one-to-one and there is a recipient in mind. It is however completely inappropriate when applied to broadcast style messaging as it works in internet social media, which is more like publishing. There's a lot more I could say about this, but I've said it all before. It only takes a bit of time examining the implications to see how dangerous this law is, how chilling to online free speech. People are committing "crimes" that they are not even aware of. Remarks that would be fine if made down the pub are prosecuted when published on Facebook or Twitter. Although it has yet to happen, similar remarks within a blog entry would also fall prey to this law. This has to stop. It is my mission and I won't rest until the Communications Act can no longer be used to dispense Arsehole Justice.

1 comment:

  1. Keep at it Matt. This law stinks. A whole new raft of crimes has been created and Parliament had absolutely no say in it. Not only that, but prison sentences are being handed out for cases where no damage to any property has happened, where no theft has taken place, where no assault has been made, where no single person can be said to have been targeted in any way that can be regarded as malicious, and in a virtual world that includes mainly ones friends.

    Imagine this, you phone up your mates and say 'let's have a riot'! You have committed no act as yet that is illegal. You simply shared an as yet unrealised intent with a friend. All sorts of things might stop you from carrying out that act, including your friend. Do the same thing through online communications and you will go to prison, whether you actually committed an act of rioting or not. And anyway, what the fuck does 'rioting' actually mean anyway. For many people, it's just going down the high street and cat whistling at the police - it in no way actually commits one to an illegal act.

    This kind of prosecution is truly fucking scary! This is worse than 1984, because at least with thought police, you could publicy present one face, and privately have another. Now, even your 'private' online social networking is being put under surveillance.