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