Is there a right to be offensive?

Published 25 April 2013 By: Laura Scaife

Joey Barton Olympique Marseille

Carrying on form the points raised in the first blog of this series, it is important for individuals with a vested interest in their brand identity to educate themselves as to the potential pitfalls of inappropriate use of social media. However, sometimes the issue can go further than inter club politics and player frustration.

Indeed, in the PSG Tweets, Barton subsequently Tweeted "Secondly, Are you Pre-Op or Post-Op? #transexual #thaigosaladyboy" which highlights that individuals should also be aware that sanctions do not end at the club (be that football or China Whites) doors; there may potentially be serious legal consequences arising out of their posts such as potential claims for defamation or hate speech. An example of this (although it concerned racist content) came after Arsenal Football Clubs midfielder Emmanuel Frimpong sustained a serious knee injury sustained while on loan at Wolves, Frimpong posted a message on his official Twitter account which read "if you going church today Pray For me Giving today A Miss", the Gunners midfielder re-tweeted a response from one Tottenham fan which read: "I prayed you break your arms and legs", to which Frimpong replied "Scum Yid". 

Despite removing the comment shortly afterwards, the comment did not escape the watchful eye of the FA. Frimpong however could have ended up falling foul of the criminal law with the potential for prosecution under s127(1) (a) of the Communications Act 2003 (the Act). Under s127 (a), a person is guilty of an offence (punishable under s127 (3) by up to six months’ imprisonment or a fine, or both) if they send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” by means of a public electronic communications network. This inevitably raises the question of what is to be considered grossly offensive, or what is of an indecent, obscene or menacing character. In DPP v Collins ([2006] UKHL 40), Mr Collins made a number of racist phone calls to the offices of his local MP. In considering if an offense had been committed under s127(1)(a), the House of Lords considered the standards of an open and just multi-racial society, taking into account the context of the words and all relevant circumstances. This involved considering reasonably enlightened contemporary standards applied to the particular message sent, in its particular context, to see if its contents was liable to cause gross offence to those to whom it related, or to be aware that they may be taken to do so DPP v Collins ([2006] UKHL 40 at [9]. In R v Joshua Cryer a case that was also prosecuted under the Communications Act, Cryer was prosecuted and convicted for sending racially abusive messages on Twitter to the ex-footballer, Stan Collymore, and was sentenced to two years’ community service and ordered to pay £150 costs (see LawInSport post Off the Field and on to the Feed-Tackling Racism Online for a discussion of liability surrounding racially aggravated Tweets). 


DPP v Chambers

It was against this backdrop of what amounts to “humour” that the judgement of DPP v Chambers ([2012] EWHC 2157; 2012 WL 2923016), dubbed the “Twitter Joke Trial” was delivered. Paul Chambers was prosecuted under the Act for sending the following tweet: 

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!

Mr Chambers subsequently appealed to the Crown Court against his conviction. The appeal was dismissed with Judge Jacqueline Davies stating that the Tweet was: “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” 

However, Robin Hood Airport had classified the threat as non-credible on the basis that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal. 

On 27 July Chambers conviction was quashed. The approved judgment stated, 

"The appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further (at [38]).

Interestingly the Court took the view that English law (prior to the 2003 Act) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. The Court also noted that the 2003 Act predated the advent of Twitter and that the statutory reference to "menacing" was itself based on the wording of the previous Act of 1935. The Lord Chief Justice, Lord Judge expressed the view that, "the 2003 Act did not create interference with the … essential freedoms of speech and expression. (at [28])" With regard to if the message was menacing, the Court was clearly impatient of the Magistrates’ and Crown Court’s views:

'if the person or persons who receive or read [a message], or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace (at [30])”.

In Chambers the Court stated that the intention of the Act was not to create interference with the essential freedoms of speech and expression enshrined in Article 10 of the European Convention on Human Rights (which the Court are required to have regard by virtue of section 3 of the Human Rights Act 1998). Lord Judge, LCJ, commented:

The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation (at [28])”.

However, Chambers has not necessarily been followed. In the magistrates court decision of, Matthew Woods (unreported) , an unemployed 19-year-old from Chorley, Lancashire, was jailed for the maximum penalty of 12 weeks imprisonment for his Facebook “joke” which he made after having some drinks at a friend’s house.  The joke was about April Jones, the missing five year old schoolgirl from Machynlleth, Wales and there was an additional joke about Madeleine McCann, the three-year-old who went missing during a family holiday in Portugal in 2007. As a result of the public reaction to his posts, Woods was arrested for his own safety after 50 people descended on his home. He pleaded guilty at Chorley Magistrates court to sending, by means of a public electronic communications network, a message or other matter that is grossly offensive contrary to the Act. Martina Jay, acting on behalf of the prosecution stated: "He started this idea when he was at a friend's house, saw a joke on Sickipedia [an online database devoted to sick jokes] and changed it slightly." The court was told Woods's Facebook page was available to a large number of people.

In Woods, Bill Hudson, the magistrate handing down the sentence, rationalised the severity of the approach taken by the Court by stating:

"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".

In part three of this series out later this week we will look at when posts are over the marksman’s line and how players can stay savvy on social media platforms.

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Laura Scaife

Laura Scaife

Laura is an innovative thinker in the field of Social Media and has been extensively published on matters concerning compliance with e-commerce issues arising out of the Office of Fair Trading and Advertising Standard Agency guidelines as well as online revenue generation, defamation, electronic communications based offences, effective dispute settlement, business crisis management and reputational management.

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