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:

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

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

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