Politics & Society

Has Lord McAlpine been the victim of a crime?

The Guardian is reporting that lawyers for Lord McAlpine, who was horrendously slandered as a paedophile after a Newsnight report alluded to a “senior Conservative” involvement in a child sex scandal, are looking into the possibility of criminal prosecutions of Twitter users who wrongly identified him.

There is no doubt that accusations of child sexual abuse are very serious. If you asked people on the street to come up with an example of a libellous accusation, chances are most would say “calling someone a paedophile”.

McAlpine has clearly been defamed, and is entitled to seek reparation.

But the McAlpine legal team are apparently investigating pursuing the case(s) under the Malicious Communications Act 1988.

Here’s the relevant text of that act, worth reproducing in full

(1) 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;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature, 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.

(2)A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—
(a)that the threat was used to reinforce a demand [made by him on reasonable grounds]; and
(b)that he believed [and had reasonable grounds for believing,] that the use of the threat was a proper means of reinforcing the demand.

(2A)In this section “electronic communication” includes—
(a)any oral or other communication by means of a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12)); and
(b) any communication (however sent) that is in electronic form.]

(3) In this section references to sending include references to delivering [or transmitting] and to causing to be sent [delivered or transmitted] and “sender” shall be construed accordingly.

(4) A person guilty of an offence under this section shall be liable on summary conviction to [imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both].

There are two pertinent issues raised here: what is “sending” a communication, and the intent of the message.

As social media such as Paul Chambers have learned to their cost, the legal definition of sending a message online seems to differ from most users’ understanding. A phonecall, text or email would suggest “sending” to most people, but we wouldn’t necessarily consider a tweet or a Facebook update as the same thing. The definition has evolved far beyond the original purpose of laws on communications, which were intended to protect people from harassment by, say, heavy breathers, or hate-mailers.

Secondly there is the issue of intent. It seems unlikely that people who tweeted alluding to false rumours about McAlpine intended to cause “cause distress or anxiety to the recipient”.

Additionally. “the recipient” is an interesting concept here: when we tweet, who exactly is the “recipient”. If we send a direct message, or include someone’s handle in a tweet, then we can identify a “recipient”, but what of a straightforward tweet, is the “recipient” so clear?

Much has been written on this blog about the use of inappropriate legislation in social media prosecutions. This would appear to be another case.

There are (very problematic) civil laws on libel, and there are criminal laws on harassment. While not downplaying McAlpine’s ordeal, we must be vigilant against the increasing criminalisation of online speech.

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11 Comments

  1. Posted 21Nov12 at 5:40 pm | Permalink
    Rob

    As far as I can see, the tweets were not threatening, indecent or offensive. So the only issue would be whether the person knew the claims to be false. On the assumption that people either believed them to be true or didn’t care, this might be covered by civil defamation law, but not criminal law. If a person knew the claim to be false but went ahead anyway, I don’t have a problem with the criminal law being used: you have a right to be wrong, you don’t have a right to tell deliberate lies about people.

  2. Posted 21Nov12 at 7:17 pm | Permalink

    Mal Comms 1988 has been superceded by Mal Comms section 127 2003.

  3. Posted 22Nov12 at 10:16 am | Permalink

    The article suggested “grossly offensive” as the catch. It could be there were some tweets made which were tasteless and alluded to the accusations in a way which might be considered offensive. The threshold for grossly offensive seems to have lowered in recent months. At any rate, the prosecution need to prove the intention to cause anxiety or distress to the recipients and anyone else they intend the message to be communicated to. That does seem unlikely, particularly with a tasteless joke.

  4. Posted 22Nov12 at 10:18 am | Permalink

    To Ciaran: section 127 to which you refer is the Communications Act 2003 which is separate from and does not supersede the Malicious Communications Act 1988, which contains only three sections. The Communications Act s127 does not deal with malice and has a lower threshold.

  5. Posted 06Apr13 at 6:43 pm | Permalink

    With all due respect Flaherty I have you know you are talking bollocks. I have a Ph.D in uman rights and I am a graduate of a Russell Group University with a First Class law degree.

  6. Posted 06Apr13 at 6:48 pm | Permalink

    Speaking as someone who regularly defames decent people on the Internet out of pure spite, mainly because I am a sexually inadequate fifty two year old bi-curious cottaging dwarf who resents other peoples success. I was arrested in Ingerlund last August for trolling. I got off because the UK law does not apply in Ballyjamesduff, Co Cavan ROI where I doss.

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