Friday, November 16, 2012

Transcript of POD Delusion piece about DPP and new guidelines

This week I lead off the POD Delusion podcast with a ten minute piece about recent comments by the Director of Public Prosecutions relating to his forthcoming guidelines to prosecutors for online speech cases. The transcript is reproduced below, with some links included for clarity.

15th November 2012

I’ve never been a fan of the current Director of Public Prosecutions, but something I read Tuesday had me shaking with rage. This is no exaggeration. Keir Starmer QC  thinks that a person’s Twitter  follower count should determine whether or not to prosecute someone for a “grossly offensive” tweet. On Monday he told the ISP Association conference that his eagerly anticipated guidelines for prosecutors dealing with online speech offenses will likely include looking at a speaker’s reach. Someone who tweets (or posts on a Facebook wall) to thousands something deemed to be grossly offensive will likely face prosecution, whereas someone with a only a few dozen followers might go unpunished.

This approach betrays serious misunderstandings at a basic level. You don’t tweet to thousands of people. You tweet and thousands of people have chosen to have your tweet delivered to them. If some of those people don’t like what they see, they are free to let the tweeter know in the strongest terms. They are free to stop receiving delivery of that person’s tweets. They are free to block the person and report them to Twitter for violation of its usage policy. There is an array of extra-legal remedies available. The same is true of Facebook and other similar forums. This is not a spam mass mailing or a multiple simultaneous crank phone call. He still doesn’t get it. Graham Linehan clearly wasn’t pleased when he discovered that he apparently has less of a right to speak than Mavis ChunderTwunt of East Grinstead, West Sussex.

I am floored to learn that the prosecution of Daniel Thomas was dropped for no other reason than he only had about 100 followers. Daniel Thomas sent a tweet that was judged to be homophobic and involved two members of Britain’s Olympic diving team, naming them without addressing them. After the pair failed to win a medal in their event, he wrote "If there is any consolation for finishing fourth at least Daley and Waterfield can go and bum each other #teamHIV." What struck me when I first read this is how very far from anything like grossly offensive this text is. It is barely even offensive when you take the time to think about what he has done. TeamHIV sort of rhymes with TeamGB, and that may have been what gave him the idea. It is a crude, juvenile, and poorly executed joke. Still, someone reported him to the police and he was arrested. He was very nearly charged with the offense of “sending a grossly offensive message by way of a public electronic communications network” contrary to the infamous s127 of the Communications Act 2003. The only reason he was not is that very few people would have seen it. Actually, many thousands more people have now seen it as a result of this boneheaded case and the media attention it received.

What makes for grossly offensive? Keir Starmer believes that the size of any negative reaction online should also be a factor. Maybe a few people complained about Daniel Thomas’ remarks. I wonder how many complained about the incident on Sunday that saw a young man arrested and held for nearly 24 hours by Kent Police following the posting to his own Facebook wall of a picture of a poppy pin being burned with a cigarette lighter and the caption “How about that you squadey (c-words)”. Squaddie was misspelt. Sadly the c-word was not. Sunday was Remembrance Day. An unthinking local parish councillor told The Sun “It’s absolutely disgusting and disgraceful what this lad did. He should be severely punished. I’ve got five sons either serving or have served in Afghanistan and Iraq. I know what they’d like to do to this idiot.” What would your sons like to do to this idiot? Maybe fill him with lead like that US soldier did to the 16 innocent civilians including women and children he killed in a homicidal rampage in Kandahar last March? Or how about the 7 British Marines who have been charged with murdering insurgents?

I encountered someone who commented on the Index on Censorship blog saying “The poppy is our symbol, our reminder of our fallen from over the years… YES we have free speech, YES we have a free country, but without the hardwork of our fallen, past and present, we wouldnt have FREE SPEECH! I DO believe Jail would be extreme for this ignorant boy, however i DO NOT think he should get away with being so obviously disrespectful and ignorant!!” Without their sacrifices we would not have free speech. And now thanks to people like sr0120 (name and web site address withheld) we don’t. Well done. Must we honour soldiers living and dead? Is that not our choice? Do we not also have the choice to dishonour them? Isn’t that the freedom worth dying for? The ugly sentiments expressed in the offending Facebook post are as old as war itself.

A far right activist group calling themselves Casuals United has taken credit for creating the furore over the poppy burning act, even bragging and laughing about it on the twitter feed of one of its members. The same group took credit for having Azhar Ahmed arrested for a Facebook update suggesting that all soldiers should die and go to hell. The thing is, it’s very easy to whip up outrage. I can find 100 people on Twitter in a matter of minutes who would be prepared to demonstrate genuine or faux outrage over just about anything. Red tops like the Daily Mail depend on it for their sales. A large part of their business is to create and market outrage. Outrage is cheap. There is value in restraint. If we’re going to call it grossly offensive when a sizeable chunk of people are offended and outraged, then we might as well hand law enforcement over to the Taliban and subject ourselves to the tyranny of orthodoxy. Burning a poppy in effigy, calling abstract soldiers a nasty name, these are political statements and should be protected. Whether he realises it or not, what Keir Starmer proposes is mob justice.

I’ll say it again. This should be written in every public space: No one has the right to not be offended. Everyone has the right to be offended, just as anyone has the right to feel any emotion. However, taking offense does not confer victim status and does not justify behaving unlawfully. Being offended does not make you special. It does not give you powers. The function of the police is not to protect the public from second hand insults and inflamed sensitivities. Kent Police ought to have informed angry callers that the young man was merely expressing an unpopular opinion in an obnoxious manner, which is not a crime. The young man was released on bail and has not been charged by either the police or the CPS, but he still might be.

Keir Starmer points out that the Communications Act offence has been on the statute books in one form or another since the 1930s, but the “reach and sheer volume” of communications over social media has seen it increasingly used to arrest people. He anticipates that without a change there could be millions of cases going through the system, more than the combined number of every other offence on the statute book. What I take away from that is simple. He believes that people placing objectionable content onto their own Twitter feeds and Facebook walls that they control is equivalent to making nuisance telephone calls or text messages.

How strange then that the police often fail to pursue cases of abusive and threatening phone calls and text messages. Stephen Farrow of Bridport, Dorset was a drifter who murdered a pensioner in Worcestershire and a vicar in South Gloucestershire not long after sending some threatening text messages to a friend that had her worried enough to phone the police. In one of these messages Farrow personally threatened his friend Michaela Rowsell, whom he met when she volunteered at a church, for rejecting his affection. On New Year’s Eve last year he sent “As you reject me you will suffer. I will be just around the corner and you will never know when I will be there. You don't and never knew just how disturbed I am. The church will be the first to suffer. It was always going to end like this. You can all go to hell. Watch the news because you will know it was me.” Though the message had left her terrified, the police reportedly told her there was nothing they could do. In fact, there was plenty they could have done. s127 of the Communications Act was made for this. It is as though a law originally intended for telephony is now thought to be only suitable for internet communications. Was this text not criminal because Farrow had only the one follower, a woman whose only choices were to receive his texts or change her phone number?

Starmer worries about the “chilling effect” that will be experienced if there continues to be a large number of prosecutions for online speech. But he fails to grapple with the cause of the chilling effect. People are doing things that they correctly believe they have the right to do. They are not anticipating criminal sanctions. The invention of the telephone did not turn good people into nuisances, nor has the invention of social networking technology. We are simply being shown more of someone’s thoughts than we’d get in a meeting in real life. Anyone has the potential to be unpleasant in the right circumstances, and much of what we write in tweets is done unthinkingly. That’s the beauty and the power of it. The chilling effect will be experienced when we are forced by law to think a good deal more about what we write on our public timelines. It will be a result of senseless prosecutions, each making it harder to predict what will be deemed unacceptable.

Here’s the worst part. The accused are often accepting advice to enter a guilty plea even where the prosecution case turns out to be weak. The advice may be that it will be difficult to secure legal aid when contesting the charge on the basis that the communications were not grossly offensive, and that may be true enough. It may be because a trial is too costly and an early plea will be rewarded with a discount. Whatever the reason, each time this happens it emboldens the police to make those dodgy arrests and the CPS to press those weak charges. And each time it happens we see a mob of unthinking people baying for blood. Just being hand cuffed, arrested, and detained for many hours is excessive punishment when you’re innocent. Even where a defendant chooses to contest the weak charges, the odds on first instance acquittal are long. The lower courts have shown a remarkable deference to the mob, real or imagined. We are becoming accustomed to the notion that causing outrage is a crime. This will only get worse.

In an inversion of Blackstone’s ratio, Keir Starmer proposes to imperil 10 innocent people for the sake of capturing that one truly guilty person. This is precisely what the proportionality test is designed to prevent. If he can’t see this then I have absolutely no confidence in him or his public consulation. Keir Starmer, on behalf of right thinking Britons, you have offended our sense of justice. I’m afraid it’s time to go. You’re nicked.

This is Matt Flaherty for the POD Delusion


  1. Starmer is making it up as he goes along!

  2. Yes he is, but to be fair to him he really is trying to understand. My big disappointment is that he should understand. It is fairly obvious that proportionality is not being respected. He doesn't seem to see that.

  3. These endless prosecutions and thousands of new laws are not the answer. Paedophiles Cyril Smith and Jimmy Saville and numerous others names on the web do not get prosecuted are rarely even questioned about the allegation from children of sexual abuse.

    The criminal injustice system is destoying the fabric of British Society. Every prosecution destoys not just the life of those they prosecute over trifles but the lives of thier innocent families and even their pets.

    Public censor is enough for most cases of opionions which the general public find offensive. Otherwise lets bring back the inquicition and burn people at the stake with different views and whils were are at lets burn all book we don't like.