Terror tweet case threatens free speech | Jacob Rowbottom

When people such as Paul Chambers are prosecuted for an offence first introduced in 1935, the knock-on effect is chillingAs a general rule, it is a good idea to avoid jokes about airports and terrorism, especially when delayed in an airport. Yet do such comments really deserve a legal penalty? This is the issue raised by the case of Paul Chambers, whose facetious tweet led to a criminal prosecution.While many commentators are rightly outraged at the prosecution of Chambers, does it really raise a free speech issue? A joke about blowing up an airport seems far removed from John Stuart Mills's defence of free speech for the pursuit of the truth or Alexander Meiklejohn's concern to protect political debate. The message may not be the type of high-minded discussion that many free speech theorists focus on, but it was a casual exchange of the sort that forms the vast majority of internet messages. These everyday low-level communications need protection too, as part of our commitment to self-expression.To take this position, you do not have to be a free speech absolutist. I accept that free speech does come with limits and that the internet should not be a place where anything goes. The question is how the boundaries are policed and enforced. For example, I have less concern when Ofcom reprimands a radio station for the offensive or politically biased remarks of a presenter. While some complain about the limit to expression when Ofcom intervenes, it is not a severe sanction. By contrast, Paul Chambers faced a criminal law conviction, which has very serious implications for him. I have read that he has already lost two jobs as a result. This is simply a disproportionate response.If the authorities were really worried by the tweet, they could have dealt with it through an informal letter and by removing the tweet. This may not make everyone happy, but it would be cheaper, quicker and a more proportionate response. In a time of austerity, investigating and prosecuting such a message hardly seems like a good use of state resources.At the heart of this issue is a broader concern about online expression and the criminal law. Many offences are cast in wide terms and can now be applied to an increasing range of communications. Chambers was prosecuted because his tweet was thought to be "menacing" and therefore an improper use of a public electronic communications network under section 127 of the Communications Act 2003. This statute provides that a person commits an offence if he "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". The offence was first introduced in 1935 to deal with nuisance callers. The legislation was initially drafted to cover cases where people "indulged in the use of improper or obscene language to female telephonists" working at the Post Office. During the parliamentary debate, Clement Attlee argued that the provision should be redrafted to protect all telephone users (and not just Post Office employees) from such calls. Attlee's proposal was accepted and the offence became law. The original offence was subsequently re-enacted in several statutes over the years and extended from the telephone to other types of electronic communications.The terms of the offence are vague and could in theory cover a wide range of online messages. People make flippant remarks in conversation, which could be interpreted as obscene or menacing, but which are quickly forgotten and cause no concern. When using services such as Twitter or Facebook, people speak as they do in conversation. However, the statements are made on a communications network that records those words and allows others to monitor what has been said (and potentially fall within the ambit of section 127). As a result, a much broader range of expression can now come to the attention of police and prosecutors. A blogpost, tweet or a YouTube video may be posted without a moment's thought, but find itself subject to criminal prosecution. This is true not just of section 127 of the Communications Act, but of many other offences that have either been poorly drafted or deliberately cast in wide terms.The broad terms of a criminal offence help to avoid problems of loopholes and evasion, but they leave much to the discretion of prosecutors. They also leave people who use Twitter in an uncertain position. Most people will not have access to legal advice before posting material, so it is important that legal restrictions give them clear instructions. They need to know how to avoid any liability. There is a role for the criminal law in some instances, but this should be reserved for serious and deliberate offences. In most cases, more informal methods provide a better way to cultivate online responsibility than heavy-handed criminal sanctions.Many remarks posted online could probably fall foul of some law, and most are not subject to prosecution. Chambers was unlucky because a staff member at the airport searched Twitter and found the posting. But the case does not just affect Chambers. It gives anyone posting comments pause for thought before saying anything that could be construed as indecent, offensive or menacing. The mere threat of prosecution can have a chilling effect on other speakers. This concerns not just those making facetious remarks. Those who self-censor could include people wanting to comment on matters of public importance. For that reason, even if Chambers wins his appeal, the case is not a victory for freedom of speech.Twitter joke trialUK security and terrorismFreedom of speechTwitterInternetJacob Rowbottomguardian.co.uk © Guardian News & Media Limited 2010 | Use of this content is subject to our Terms & Conditions | More Feeds

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