Saturday, 3 August 2013

What's so wrong with being offended? #FreedomToOffend

Steve Hughes makes an excellent point on "what's so wrong with being offended?". It's worth watching from 3m22 to 5m22, but the whole 7m48 is very amusing. Spoiler: "nothing happens" - Blog

Monday, 29 July 2013

#FreedomToOffend is not #FreedomToThreaten

In my earlier post about Deyka Hassan I recounted how she went to the Police to report threats of violence and abuse against herself and how she was instead prosecuted for her own tweet. It is not known that any action was taken against those who abused her. She received such messages as: 

@blaysefleckney tweets: @Deyka you ought to be hunted down, gang raped with a handsaw then fed too (sic) the pigs you fucking scumbag"

Deyka's tweets were also retweeted to the Metropolitan police to request action be taken against her.

I have also discussed how Ben Townsend's racist tweets were reported to Gloucestershire Police via Twitter itself (more screenshots in the article), and he was subsequently arrested: 

Today we see a slightly different case in which MP Stella Creasy repeatedly retweeted her recieved abuse to Waltham Forest MPS who told her to report it to a station. Official Police Twitter accounts across the country will all say that they are not to be used to report emergency crime as they are not monitored 24/7, and this is very understandable. What should be noted however is that there ought to be consistency amongst these services. It is also undeniable that as a whole this picture needs to change with urgency. 

Tweets to MP Stella Creasy threatening rape at a specific time near her house
Montage property of London Evening - Blog

Friday, 26 July 2013

The Great P--- Debate

This post is a round-up of the main points made so far in The Great P--- Debate, following the news on 22 July that online pornography is to be blocked by default.

The Great P--- Debate is rather like a super injunction: we will struggle to talk about what we cannot discuss because the same filters designed to stop you from seeing pornography and discussing simulated rape scenes will also be the ones that keyword search blogs and filter out posts like these, as demonstrated by Paul Bernal's post My porn-blocking blog post got porn-blocked!.

Deborah Orr, in The Guardian phrased the issue as such:
A roar of libertarian outrage greeted David Cameron's announcement this week that the government was going to talk to internet service providers about installing opt-in rather than opt-out filters for pornography, as if computer access to hot and cold running arousal aids was some kind of basic human right. Is this really such a big deal? 
Orr states that it "irks" her that she has had to write her article and that the idea is "perfectly reasonable" but she fails to grasp the real crux of the "libertarian outrage" of the past week. The one thing that should be made very clear is that The Great Porn Debate is not about pornography. It is about censorship, civil liberties, and a damaging misunderstanding of technology and the Internet. 

I have discussed social media based technological misunderstandings and challenges for legislators and shocking ongoing decisions being made in cases related to Twitter and Facebook, but The Great Porn Debate has highlighted this epidemic of technological illiteracy and disregard for civil liberties to a far greater extent. The premise is simple: individuals are to have their Internet search results and direct access to certain websites, on their own private home connections, blocked and filtered at the source by their ISPs (Internet Service Providers also commonly known as "broadband providers").

I have been reluctant to write anything on this issue so far because there are several good blog posts on the matter already. The aforementioned Paul Bernal wrote 10 questions about Cameron's 'new' porn-blocking, which explores important questions such as: what is pornography? Who decides what is covered, and how? and culminates in the key question of whether the action will really address the expressed intention: do you really think these plans will stop the 'corrosion' of childhood?

Tom Pride also explained How Cameron's plans to block on-line porn could also block political sites. This has serious implications because we are then not only blocking pornography but we are also blocking ideas, and with a block in place there is no way for the consumer to know what she does not have access to, because, like with the super injunction, any allusion to it is also blocked.

Jules Mattsson's Tumblr shows how over-zealous filters remove access to websites such as the Queer Youth Network and Marie Stopes, and have the potential to remove access to a series of support and guidance websites that provide information to children and young adults who might not otherwise have access to or knowledge of them, thus continuing to defeat the purpose of protecting and helping "our children". The Open Rights Group, in their discussions with ISPs, have suggested that we are Sleepwalking into Censorship and that the filter may also extend to the following arbitrary areas:
violent material
extremist and terrorist related content
anorexia and eating disorder websites
suicide related websites
web forums
esoteric material
web blocking circumvention tools
But there are far more serious and worrying implications here, and the biggest seems to be that legislators do not understand technology. David Cameron can't protect us from child porn because he doesn't understand the internet (Mic Wright) says an article in The Telegraph, which is in line with another in The Independent: This Government doesn't understand technology. The attempt to block porn proves it (Chris Ward), and The Guardian: Why David Cameron's war on internet porn doesn't make sense (by Tom Meltzer).

The recent misadventures of MP Claire Perry bring us new concerns. Pirate Party UK blog contributor Jerry Barnett has already very eloquently expressed his view on Why is the UK the Most Censored Nation in Europe? and on how Claire Perry's "Porn Filter" Is Internet Censorship v1.0. In this latest post Barnett makes several good points and reveals a "darker side" to this censorship:
UK mobile phone companies already have filtering on their 3G networks: subscribers are required to age-verify their accounts to disable the filter. Numerous cases have been documented of non-adult material being blocked by mobile companies. The obscenity law specialist Myles Jackman tells me that his blog, which tackles legal issues about sexuality, is blocked by some mobile networks. The Open Rights Group reports that the British National Party’s web site was also blocked on some networks. I’m certainly no fan of the BNP, but official censorship of political web sites gives me even more cause for concern.
The same day of that blogpost we saw Perry misunderstand screenshots and hacking, as she took to Twitter to accuse Guido Fawkes of "hosting a link that distributed porn via [her] website". It doesn't take a particularly technical knowledge of hosting, links, or websites to understand that the phrase itself does not actually mean anything as it does not describe a possible action. At the time of writing this these tweets remain online, but the full story has been captured and shared by the Ministry of Truth. Perry's misunderstanding has been widely criticised in the media, as far and wide as blogs such as that of the Adam Smith Institute. Fawkes is now looking to sue.

There will certainly be lots more to say on the topic as its impact is felt and the consequences are noted. In the meantime I recommend following  @PornPanic / Sex and Censorship for more developments.

Updated 27 July to include Open Rights Group information. - Blog

Friday, 19 July 2013

On #FreedomToOffend - Part II

The UK has a Twitter problem that we may think only affects countries far away. It has been said that Turkey has a Twitter problem: as we watch the protests unfold in Istanbul and Ankara, protesters take to Twitter to relay in real-time the police brutality and and the situation on the ground before it gets to the main media. According to the Global Post, Turkish PM Tayyip Erdogan called social media "a menace to society", and the police have "raided [...] dozens of addresses" to arrest those posting photos of protests onto Twitter.

It may seem disproportionate to lead into a discussion of Twitter-related arrests in the UK by introducing the case of a Turkey in turmoil, however, to this accusation I have two retorts:

1. Unlike Iran and Egypt, Turkey is seeking membership of the European Union, and discussions of its accession are ongoing. Turkey is "closer to home" than some might initially think.

2. Whilst plausibly not in the same scale or with the same political motivation and severity, Twitter-related arrests and subsequent sentencing in Britain are problematic, not as rare as they may seem, and should cause as much indignation as similar arrests abroad.

In Part I I had a look at the case of Ben Townsend, 25, of Cheltenham, who tweeted racist abuse at footballers Adebayo Akinfenwa and Clarke Carlisle. I had a look at the offending tweets and the responses they received, the sentence he was given, and a variety of relevant legislation.

One of the most important points I make, and which I will elaborate on below, is that "s127 of the Communications Act 2003 makes it an offence to publish a grossly offensive message, thus allowing someone to be penalised for an action that is entirely (culturally, morally, personally) subjective". This is similar to the offense created by s1 of the Malicious Communications Act 1988,  relevant in the case of Deyka Hassan (below), which states that
"any person who sends to another person
(a) a letter, electronic communication or article of any description which conveys — 
(i) a message which is indecent or grossly offensive [...]
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated."
Deyka Ayan Hassan, 21, of Harrow, contacted the police "after receiving hundreds of vitriolic responses to the message on May 22, including threats to rape her and kill her by burning down her home", but was herself arrested when she told police that she had sent a tweet saying: "Anyone who wears a help for heroes t-shirt deserves to get beheaded tbh" (tbh means "to be honest").

The response was similar to that which Ben Townsend received, as "the Internet" is quick to respond with threats of violence and abuse. Responses (pictured below) included a call for her to die; to be gang-raped with a handsaw; and a suggestion to commit suicide:

@Chet_Sket tweets: "@Deyka_: Anyone who wears a help for heroes t-shirt deserves to get beheaded tbh" DIE U SCUM
@blaysefleckney tweets: @Deyka you ought to be hunted down, gang raped with a handsaw then fed too (sic) the pigs you fucking scumbag"
@ConnorNewhall tweets: <Deyka's quote> #wanker picture of a noose with the words "i bought you a necklace  here put it on"

Responses also included calls for the police to "deal with" and "take action about" her tweet:

@dannysj76 tweets: "@Deyka_: Anyone who wears a help for heroes t-shirt deserves to get beheaded tbh" @metpoliceuk please deal with this scum@chrisdeson tweets: "Deyka_: Anyone who wears a help for heroes t-shirt deserves to get beheaded tbh" @metpoliceuk Please take action about this?

Deyka was sentenced to 250 hours unpaid community service but she was told that she could have been jailed for the offence had the magistrates not been convinced that she had not known the victim of the Woolwich attack had been a soldier.

There are several points in this case which should concern us:

  1. Deyka's initial intention was to report messages of abuse directed against her person; she sought help from the police but was promptly arrested, with the messages of abuse against her being used as evidence of the impact of her own offence.  
  2. Chairman of the bench Nigel Orton is quoted as having said: "It had a huge impact and clearly caused offence and distress. We accept you didn't intend to cause harm and you felt it was a joke. Your act was naive and foolish and without regard to the general public at a time of heightened sensitivity.", despite the Malicious Communications Act 1988 requiring (as quoted above) that the purpose of the message be to: "cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated". 
  3. Deyka's tweet, although controversial, was a statement of opinion aimed at no-one in particular. The Malicious Communications Act 1988 requires states that the offence arises when "any person who sends to another person [...]", which seems to indicate again a rather liberal interpretation of the Act. 
  4. Whilst Twitter and its 140 character limitation may make it difficult for tone and jocularity to be appropriately conveyed, it seems that the sentence is greatly disproportionate to the act, particularly when regarding the entirely subjective nature of the word "offense". Furthermore, offense does not require a legal definition as "indencent or grossly offensive" are ordinary English words (Connolly v DPP [2007] 2 All ER 1012).
  5. It seems unthinkable that her knowledge of whether Lee Rigby was a soldier or not could be the difference between 250 hours of unpaid work and a jail sentence as this is not within the scope of the Act. And, if it were to be included in the Act, that in itself would be a point of great contention.
So whilst it should be evident that I am by no means implying that we are charging towards the state of Turkey, Egypt and Iran, these examples so close to home should trouble us and we should not ignore them. As the law struggles to understand and legislate social media we should defend our rule of law, be particularly aware of these cases and not allow them to pass undetected for fear of the precedents they set.  

Posts in this series:

On #FreedomToOffend - Part I
Hashtags and Timelines: New Challenges for Legislators - Blog

Wednesday, 17 July 2013

On #FreedomToOffend - Part I

(Please also see On #FreedomToOffend - Part II)

I have already summarised part of why Twitter-related arrests and sentencing in the UK are problematic from the point of view of inadequate legislation, and a fundamental misunderstanding of the technology involved on the part of prosecutors and the judiciary.

Two cases in the past month raise a series of questions regarding Twitter arrests. The first case is that of Ben Townsend, 25, of Cheltenham, who tweeted racist abuse at footballers Adebayo Akinfenwa and Clarke Carlisle; the second case is that of  Deyka Ayan Hassan, 21, of Harrow, who tweeted jokingly about the "Help for Heroes" t-shirt worn by drummer Lee Rigby in the Woolwich beheading in May this year. Part I of this discussion (this post) will only address the case of Ben Townsend. Part II will follow with a discussion of Deyka Hassan's case.

Ben Townsend admitted two charges of sending an offensive message by a public communications network, presumably under s127 of the Communications Act 2003[i]. CPS guidelines on communication offences state that under s127 of this act, "if a message sent is grossly offensive, indecent, obscene, menacing or false it is irrelevant whether it was received. The offence is one of sending so it is committed when the sending takes place."

Ben Townsend (@towner1987, whose tweets are now protected) tweeted (published via Twitter) the following:

  • @clarkecarlisle5 stupid coon fuckoff #cunt
  • @daRealAkinfenwa you fat bastard!!!, need to run that fat of u lump #monkeyboy
  • @clarkecarlisle5 fair play your the biggest cunt going, dirty cheating fucking bastard!! call your self part of the pfa... your a joke #cunt

His tweet to Clarke Carlisle received a response in the form of a quote and reply: 

In quoting Townsend's original tweet, Carlisle gave it a greater audience (Clarke Carlisle has over 70,000 followers, compared to Townsend's near 100 at the time of the offence). This increased audience led to a series of further reactions, some of which dismissive ("An amoeba, mate"), and some clearly more aggressive ("have him killed clarke!"), as pictured below. Such extreme reactions are common for the internet and far predate Twitter.

Award-winning @MentalHealthCop Inspector Michael Brown made Townsend aware of the fact that "the outrageous and offensive racism in your tweets is a criminal offence - I am going to report it.": 

The issue was subsequently followed up by Gloucestershire Police (@Glos_Police)[ii], who promised to be "coming a knocking for this individual!":

Townsend was sentenced on July 4: he was ordered to pay each of the footballers £500, and complete 200 hours of unpaid community service (high level community order). 

In this case, despite the clear racial slurs used in the tweets ("coon", and "monkeyboy"), it has not been reported whether Townsend has been found guilty of a racially aggravated offence. Should the offence have allegedly been racially aggravated, then there would be a need to show, as per the Stephen Lawrence Inquiry Report and CPS prosecution policy, that the incident "was perceived to be racist by the victim or any other person"; however, as mentioned, the offense takes place at the point at which the message is sent. The most important point to note in this is that s127 of the Communications Act 2003 makes it an offence to publish a grossly offensive message, thus allowing someone to be penalised for an action that is entirely (culturally, morally, personally) subjective. The case of  Deyka Hassa will further illustrate the impact that this has, and how it should truly shock the reader. 

Additionally, it should be noted that there exist other offences for similar behaviour (engaging in public racist abuse against footballers) such as the offence of engaging in racialist chanting at a football match, whether alone or in a group, as created under Section 3 of the Football Offences Act 1991. This offence can carry a level 3 fine and, in addition to this, incur a ban from any football match. The CPS Racist and Religious Crime guidance suggests that other legislative tools may be more appropriate for similar offences taking place outside major league football stadiums, such as public order offences.

It is reported that Townsend holds a previous conviction for criminal damage, and that he pleaded guilty to the charges. A previous conviction may increase the severity of the penalty, as per the Magistrates' Court Sentencing Guide, and a guilty plea may reduce the severity of the sentence (see Appendix 1). Overall, it seems that the sentence Townsend received is in line with what could be expected if he were, say, to have shouted at the footballers in the street.

This is where I depart from a strictly academic discussion of facts, and consider this from a personal point of view, making several subjective points. The issue with this case is not that penalty is not in line with what one would expect in other contexts, but that in a practical sense it is arbitrary to police Twitter in such a way, and the penalty compared to the act can seem disproportionate. Two adults in a public exchange: one provokes, one responds, and it seems unlikely that with the physical distance it could escalate beyond exchanging unpleasant words. Carlisle responded. Not only did he respond, he also triggered several far more aggressive responses from third parties, including highly eager calls for police involvement (who "came a knocking", which in itself seems to indicate a rather enthusiastic response to this call of duty).

It seems almost to defy belief that a couple of rude comments could carry such a sentence; that being offensive and uncouth in a brief exchange is a crime - what has society gained from this?
And it seems expected that we as adults can have such thin skin and require police involvement, and take such pleasure out of the whole process. I imagine that if settling matters in a civil court for damages it would be a challenge for the footballers (or their legal counsel) to prove loss.

I have highlighted in part why the current system of prosecution and sentencing does not seem to fit with the reality of the Internet, although it by no means covers all possible ground. Even with the new CPS guidelines, these are not laws, and they come into play once a case has been reported rather than deal with the overall regulation of the Internet. They do not provide a framework solid enough to be reliable, to make the enforcement of the law unambiguous and foreseeable.

[i] Although most news articles state that he was arrested under the Malicious Communications Act 1988; for different uses of these statues please refer to the CPS guidelines regarding communications offences
[ii] The white tick in a blue shape by the username indicates that this is an account verified by Twitter as real. In this case, it confirms that Glos_Police actually represents Gloucestershire Police.

Appendix 1: Magistrates' Court Sentencing Guide extracts: - Blog

Marriage (Same Sex Couples) Act 2013

A song dedicated to the passing of the Marriage (Same Sex Couples) Act 2013:
 And another Tom Robinson Band song, just because: - Blog

Saturday, 8 June 2013

Hashtags and Timelines: New Challenges for Legislators

There are 10 million UK Twitter users, and a vast majority of these have never penned an article for a broadsheet newspaper. After all, it is easier to type in 140 characters on your flight being delayed than it is to construct a scathing exposé of child labour. But 140 characters can cause a great deal of trouble.

As far as the law is concerned a Twitter message, or tweet, is a publication. Even a private tweet can be re-tweeted, or otherwise be re-broadcast and published elsewhere online or in print.  When tweeting or re-tweeting a person is as liable for the content of that message as they would be if they were writing for the pages of any national publication. This means that any Twitter user is open to be sued if the content of the tweet is explicitly libellous, or if defamatory meaning can be inferred.

With the sudden emergence of social media the law is forced to respond quickly to an ever-changing condition; Internet users have a new-found freedom to explore; and everyone has something new to learn about the way it all works. But what happens when new laws are adapted based on legislation created in an era during which our wildest dreams could not imagine what was to be, and when those involved in creating and upholding the law do not fully understand what they are working with? This is what we will briefly explore here.

Misunderstanding Social Media

Despite the popularity of social media and the numerous cases that have arisen over the years, the intricacies of social media are still something that courts are finding hard to wrap their heads around. This has resulted in a variety of legislation being invoked and judgements relying on erroneous technological explanations. Liam Stacey of Swansea was jailed for 56 days having been found guilty of an offence under s4A of the Public Order Act 1986. He tweeted racially aggravated abuse of footballer Fabrice Muamba, who had suffered a cardiac arrest on the pitch during a televised match and was clinically dead for over an hour. Stacey appealed this decision, and it is particularly interesting to look at how Twitter is described in the dismissal judgement. One of the many tweets discussed in the case ended in “LOL fuck Muamba he’s dead !!! #Haha”. It is then noted, by way of explanation to the court[i]:

“LOL is accepted to mean laugh out loud. As well as posting this message on his own account the Appellant linked the message to a site call (sic) Ha Ha. That meant that what he had written was capable of being read not just by those persons who followed the Appellant's Twitter account but by any other user of Twitter.”

In reality, the tweet did not link to any external site. #Haha is a hashtag. A hashtag is a metadata tag used as an identifying grouping tool with a # prefix that allows a user to label their tweet with a keyword that can then be used to locate related messages on that subject, although any word can be searched for with the same effect regardless of whether it has been prefixed with a # or not[ii]. Unless a Twitter user has a private account, all tweets are public to the world and can be accessed irrespective of whether a person has an account or not; using a hashtag does not alter this. A useful hashtag will often be more specific, and include an event or known abbreviation, so that other users may search for it and know what they expect to find. For instance, #Olympics2012 for the London games, #LordsReform for the Parliamentary debate on the Lords Reform, or #BBCqt for BBC Question Time. In Stacey’s case, and in terms of the audience his tweet could potentially reach, it may have been more relevant that he mentioned Fabrice Muamba by name than that he included such a generic hashtag as users would be more likely to search for “Muamba” than for “#Haha”.

Whilst it is unlikely that a better understanding of how Twitter and hashtags work could have changed the outcome of proceedings for Stacey in any significant manner it is still surprising that such mainstream technology, with such explosive adherence, can be so fundamentally misunderstood in our courts in a way that they may not even be aware. Maybe it is true that lawyers hate technology[iii], or simply that over the ages they have feared it for a variety of reasons[iv]; it may be that it develops too quickly or that it requires too much specialised time and attention, but social media and in particular social media on mobile technology are rapidly becoming a part of everything we do and this is crucial in everything from education to commerce, and from personal safety to national security[v]. In seeking a just outcome in a criminal court we must surely owe it to ourselves to ensure that any objectively verifiable facts are accurate. Although at times it may be impossible to establish all facts with certainty, technicalities should be ascertainable and correct. Simply because in one example the difference made may be little this does not excuse a tolerance of error overall or for the future.

Outdated Legislation?

"[The internet] does not trade in gossip. It simply publishes it online, conveys it on Facebook, uploads it onto Youtube, tweets and re-tweets it. It is likely that new [legal norms] and new laws will need to be developed."

These are recent words from Lord Justice Leverson[vi] following the recent and still much-debated publication of his 2000-page report. Whilst the purpose of the Leverson report[vii] is not to explore the law’s relationship with the public’s use of social networks, there is acknowledgement of the astonishing speed at which a message might be propagated, of the problems that we are currently facing, and that we are likely to continue to face in terms of regulating these services, identifying relevant users, and holding them to account when they are suspected of breaching the law.

A recent article[viii] published by the Society for Computers & Law (SCL) helps explain why we ought to be looking not only at our existing laws, but also at their origins. Offenders are often trialled based on offences created under legislation that pre-dates the public and widespread availability of the Internet and the social media craze we are experiencing. There seems also to be little consistency as to which Act is invoked, which in turn raises other concerns with rule of law issues regarding the predictability and certainty of the law and its application. Even the most contemporary piece of  legislation used for these proceedings, such as s127 of the Communications Act 2003, whilst seemingly drafted in an era more adapted to our online behaviour, is essentially a copy of an earlier act of 1984 (predating public access to the Internet)[ix] designed for regulating one-to-one communication by post or telephone.

In the 2003 act the earlier words “public telecommunication system” (PCN) have been updated to “public electronic communications network”. The SCL article draws our attention to an analysis by LJ Bingham[x] of the purpose of s127 as being:  'not to protect people against receipt of unsolicited messages which they may find seriously objectionable' but 'to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society'. With this in mind, we can see that the use of a private service such as Twitter may not have been within the original scope of the Act.

Although it is not unusual for new Statutes and case-law to borrow from existing legislation in order to expand and provide for new developments, Professor of E-Governance Lilian Edwards explains[xi] that all manner of problems may arise as a consequence of categorising Twitter and other social media in the same way as public services. One reason that is mentioned is that such legistlation goes beyond what is necessary in a democratic society in order to limit freedom of expression. Another reason is that PCNs are subject to far stricter regulations, including supervision by Ofcom which may simply not be practicable in a world of user-generated content at the rate of 200 million tweets per day[xii]. from across the world. In fact, enforcing content-policing duties on this rate of activity may not be worthwhile for Twitter in the long-run, and it could potentially prove too onerous to maintain in terms of time, money, and legal expenses. In light of the many social and political benefits that have grown from our current models of social media, this would be a great loss.

In an attempt to address the existing uncertainty, the Crown Prosecution Service (CPS) has published guidelines[xiii] on how to approach different communications offences, indicating which legislation may be appropriate for separate groups of offences. The guidelines mention acts such as the aforementioned Communications Act 2003, the Postal Services Act 2000, and the Malicious Communications Act 1988, and they refer to existing Public Order Offences to be used where applicable. As we noted with the case of R v Stacey other acts have also been used, such as the Crime and Disorder Act 1998, but the Protection from Harassment Act 1997 and the Computer Misuse Act 1990, amongst others, have also been used.
The problem does not end here, nor is it limited to the use of Twitter. Facebook user Mitchell Stancombe was charged and sentenced to 3 years in jail following an offence under s.44 of the Serious Crime Act 2007 when he posted “When are we going to start the Southampton riots then?” on his Timeline[xiv] along with two other posts. The presiding Judge stated that this was a “deterrent sentence to demonstrate this type of conduct will not be tolerated by the courts”. Another Facebook user, Matthew Woods, was sentenced to 12 weeks in jail for offences under s127 when he posted “jokes” about missing 5-year-old April Jones[xv]; the sentence, much shorter than Stancombe's, was explained by magistrate Bill Hudson:
"the reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive."[xvi]
The lack of certainty regarding which statute will be applied to the offence brings with it a series of other concerns. Sentencing is usually determined as a function of the seriousness of a crime, the level of harm to the victim, an existing criminal record, personal circumstances, and a guilty plea, amongst other things[xvii]. It should then become apparent that if similar cases are being tried under different offences, they may be considered to have varying degrees of seriousness and consequently be punished by custodial sentences of entirely different lengths, if custodial sentences are used at all. It is also questionable whether “public outrage” and “abhorrence [...] in society”, as mentioned above, should be a deciding factor at all (R v SSHD ex. p. Venables [1997] 3 WLR 23).

It is unclear what steps courts are taking to homogenise the penalties for similar offences perpetrated on social media. However, to deal with the existence of issues arising from prosecution, the CPS has also published further interim guidelines[xviii] on prosecuting cases involving communications sent via social media. The interim guidelines begin to address the issues covered in this article, and that are not already covered by the communications offences guidelines, and they are part of a wider consultation process with a deadline of March 2013. Once finalized, these guidelines may still not be enough. This is the point made by the SCL site and magazine editor, Laurence Eastham, who argues that what is really necessary is better law, and a long hard debate and investigation about what this should entail, and how to ensure that the needs of this ever-changing medium are met. This may take the form of stricter or more specific tailored legislation, or it may involve a scaling back of the restrictions to liberty and the freedom to offend, with a heavier reliance on legislation designed to combat harassment and the spread of fear such as ‘falsely shouting fire in a crowded theatre’[xix].

Ultimately, we must conclude that as users of social media and other communication networks, we should be aware of our responsibilities and the issues that arise through the use of these services as they continue to shape the way we communicate with each other and the world. We must be aware that it is impossible to predict with certainty the outcome of our online actions and we must be aware that despite the illusion of privacy we must proceed with caution when committing our thoughts publicly to writing, and perhaps it may be advisable that as with general personal conduct, a modicum of restraint and respect for others should be observed.

There is also the natural counterpart to this conclusion: In order to defend our liberty and freedom of conscience and expression, we should be aware of the growing social and moral need for these issues to be properly and formally addressed so that the law can be unambiguous and thus fairly applied. It is not enough that we bite our tongues indefinitely, in fear of how the law may be applied to what might otherwise be a meaningless remark; mere guidelines for prosecutors are not sufficient and thus this is where the call lies for clear, accessible and binding laws.

17 December, 2012
By Margarida Santos Silva – GDL PT Distance Learning, second year.

[ix] s43 of the Telecommunications Act 1984
[x] In DPP v Collins [2006] UKHL 40
[xi] [xii] 2011 data,
[xiv] Facebook “timelines” (also called “walls”, or “profiles”) are where user content such as statuses, links, and photos are shared for friends to see.
[xix] Schenck v. United States, 249 U.S. 47 (1919)

Monday, 3 June 2013


How long do you wait to hear back from an editor before you look to publish your piece elsewhere? What was a topical subject in December is now slowly decaying in my Outbox while I wonder what to do with it. 

Thursday, 7 February 2013

Harassment, social media, and how the law is coping

As I have mentioned before, I am eagerly awaiting the publication of the next issue of LegalIncite in order to, amongst other things, find out whether my article Hashtags and Timelines: New Challenges for Legislators (working title) has been published.

Briefly my article addresses two issues: how courts and legislators seem to constantly find themselves at odds with new technology such as Twitter and Facebook, and how UK laws may not be adequate to the new legal challenges presented to us by the abuse of social media and new technologies.

In my article I briefly address the following cases:

  • Liam Stacey of Swansea was jailed for 56 days having been found guilty of an offence under s4A of the Public Order Act 1986 after tweeting racially aggravated abuse of footballer Fabrice Muamba[i]
  • Facebook user Mitchell Stancombe was charged and sentenced to 3 years in jail following an offence under s.44 of the Serious Crime Act 2007 when he posted “When are we going to start the Southampton riots then?” on his Timeline[ii]
  • Another Facebook user, Matthew Woods, was sentenced to 12 weeks in jail for offences under s127 when he posted “jokes” about missing 5-year-old April Jones [iii]

This is an area that I find quite interesting and so I keep an eye on the development of these cases, and of similar cases, and commentary on similar issues. I am also interested in observing the development of similar cases elsewhere in the world and this article caught my eye today:

It's interesting to see how differently America treat Twitter/Facebook and free speech. Perhaps that is a direct product of having a written constitution and clearly enforceable inalienable rights to which citizens feel a close personal connection. This post was on the Above the Law blog from which I quote:

I’m all for holding people accountable for their racist behavior.
But I also love children. I love allowing children to behave like children — nasty, violent children. Adults can be expected to behave with appropriate decorum, but you have to cut kids a little slack.
Liam Stacey and Mitchell Stancombe were both 21 at the time of their offences, and Matthew Woods was 19, but we can still wonder whether the sentences are proportionate and consistent with the offence, and each other.

Many similar cases can be found with a quick online search and trolls are not a new phenomenon. Certainly harassment and racism are not new either, and there are several US tumblr collations of quite explicit Twitter racism and violence at a level which seems quite different to that in the UK so far, or at least, these cases have not reached UK courts or been given media coverage, even before the publication of the interim guidelines on prosecuting cases involving communications sent via social media. It would be interesting to see how the CPS would handle these cases, and the direction the courts would take.

For now, I will keep an eye on the development of a few cases and perhaps write more if the developments are interesting.

[ii] Facebook “timelines” (also called “walls”, or “profiles”) are where user content such as statuses, links, and photos are shared for friends to see.
[iii] - Blog

Wednesday, 6 February 2013

In a man's world

"Whatever women do they must do twice as well as men to be thought half as good. Luckily, this is not difficult."
When I was about 12, living in Portugal, the school bus driver and some younger male children on the bus were discussing a Benfica football game from the night before. We all supported the same team, so I chipped in with a comment that I no longer remember. What I do remember is the way the bus driver turned around and shouted at me while still driving the bus: "You, shut up! If we want to talk to talk about make-up and dresses we'll ask for your opinion but until then you shut up!" This is certainly one of the earliest and most direct forms of sexism I have experienced.

I recalled this episode recently after watching a fascinating documentary called Miss Representation which addresses the role of powerful women in America and the way that they are treated by the mainstream media. The film made several interesting points beyond those which I am most used to hearing; for instance, it talked about how female politicians are commented on in terms of fashion and style rather than policies and argued that they are described with 'charged' stereotypical language referring to their opinions as 'complaints' rather than 'comments', describing them with derogatory words such as 'bitch' but also the usual objectification of 'hot', etc. This is well illustrated in this video from Saturday Night Live with comedienne Tina Fey, in reference to Sarah Palin and Hillary Clinton during the 2008 US presidential election (edit: I couldn't find a non-edited video but here is a transcript*)

The documentary also touched on a series of other similar situations, such as the near-unbelievable objectification of American female news anchors and the stark contrast to their male counterparts, it discussed the role of "women's stories" in Hollywood, and how young girls are not shown that they can hold positions of power. More than that, little boys are taught that to be real men they must be more powerful and more successful than women, rather than equal, and never show weakness or emotion.

The documentary tells us that "only 34 women have served as governors compared to 2319 men" (now 35), and that US legislators tend to be picked from white, Christian, married (straight), college educated, over-40s males. Thankfully, from a brief glance at the House of Commons, the situation in the UK is slightly better. Certainly there are better parity laws, even if they are far from being a decent finished product (is any law timeless?). One example of this is the better recognition of paternity leave.

I've always had practical experience of sexism by virtue of being a woman, not often as blunt as my earlier example, but not always far off. However, it is only recently that I have come to recognise and accept that this does not have to be normal. Some friends of mine that have recently had children are making me realise the level of compartmentalisation (to not use the baggage of 'conditioning') to which children of either sex are subjected. I do not necessarily know what can be done on a larger scale to address this societal issue but what I do believe is that having an individual awareness of the situation is a good first step to changing things.

Friday, 18 January 2013

Encouraging advice from Lord Phillips

I am looking forward to the next issue of LegalIncite for many reasons. The first reason is primarily selfish, given that I should have 2 articles in the upcoming issue. I will share more details of them once they are published.

The second reason is because the preview of advice that Lord Phillips has given us BPP students is very encouraging and I wish to read more about it.

From the LegalIncite Facebook page, this is Lord Phillips's advice:

"Prior experience in a specialist area is not important but I think breadth of experience is important. The candidate for the Bar or the solicitors’ profession, who has done nothing but law, is not as attractive as the candidate who has other things to offer…it won’t necessarily be experience in accountancy or science, it might be something completely different such as having done some fantastic trek to the top of Mount Everest!"
"If everyone had all the time and all the money in the world, I would advise everyone to do a different degree first and come to law afterwards."
As someone that has come from an economics and politics background, I hope that I can continue to benefit from a broad view of the world and that this proves useful in my professional life.

Screen shot: - Blog

Thursday, 3 January 2013

Art for the talentless: Photography as a growing trend

I wrote this is as a wind-up of a few of my "photographer" friends, back when we were involved in University student media. Needless to say, these were times before Instagram.

Regardless of the state of the economy, and regardless of how many times the word recession is thrown around, it seems that many of us are happy to go on living our lives oblivious to the economic situation we find ourselves in.

At least, that’s the impression we get when we look around and see so many students of all ages and backgrounds with brand new cameras in their hands. These days, pretty much everyone owns a camera, and those who do often like to think of themselves as photographers. In the olden days, cameras were big old clumsy things on tripods that almost required a BSc to use; they had a cloth you had to hide under, a 20 minute preparation time, and at least a few days would have to pass before you finally saw the result of your effort. That is, if you hadn’t accidentally blurred it or left half of the subject out. So yes, in those days if you had a camera then the odds were in favour of you being an actual photographer.

Even in more recent years, cameras still seemed to require a knowledge about depth of field, f-stops and shutter speeds, careful composition and the rule of thirds, more than an ability to simply point and shoot. You had to go out and buy film and then pay to have it developed , which incidentally, for those of you not young enough to remember, cost a fortune. You had 24 or 36 chances per roll, and you faced the trade-off between black and white or colour, slides or 35mm prints, and a serious pondering over ASA values. But these days a digital single-lens reflex camera, or DSLR, is a camera that is larger and in many cases heavier than the much cheaper and more widespread compact cameras with electronic viewfinders - able to take amazing shots with little more from the owner than the basic ability to press a button. And with the increase in popularity of both the DSLR camera and compact cameras, photography seems to have become a totally banal process.

In fact, some could go as far as to say that photography is - for the most part - art for the utterly talentless.  If you can’t sing, can’t paint and don’t have the patience/time/talent to learn an instrument, do some crafting or shape some clay, then you can always buy a camera. Because to many, that’s what it is: It’s art for the artistically challenged.

We could even take it a step further and call it “visual karaoke”; processes whereby one takes nature, or something someone else has put more time, effort, and skill into,  and tries to pass it off as being their own merit simply by putting uploading it to Flickr with the words “JP Photography” on it. Upcoming “photographers” beware: this is a very important step in any photographer’s career. A rudimentary knowledge of Photoshop is vital, not only for the important contrast adjustments, colour-popping, and other such effects, but most importantly for the addition of the author’s initials and the word “Photography”. Nothing else serves so well as instant validation to the photographer, as the branding of the image with the word Photography. Incidentally, Photoshop is an extraordinarily expensive programme which everyone seems to own, but no one seems to have paid for.

So thanks to sites such as Deviantart, RedBubble, and most popularly, Flickr, it is virtually impossible to be on the internet without running into thousands of shots of sunsets, graffiti, graves, and rings on books casting heart-shaped shadows, alongside macro shots (close-ups) of everything from Converse trainers and stationary, stripy socks and eyes, to daisies, kittens and ladybirds, each branded with the words “XYZ Photography”.

And all this without a single mention of the MySpace generation, the camera-hoards of boys and girls in with their camera phones, revealing bird’s-eye views, and thousands of grainy flash-in-the-mirror pouting selfportraits. They’re in their millions, they’re in our computers, and they’re taking up our web-space.

Originally published: February 27, 2009 - Blog