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

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