Index took part in that consultation back in October. I wrote at the time Starmer was adamant that the ruling in the Paul Chambers appeal (which overturned his 2010 conviction for jokingly tweeting that he would blow an airport “sky high”) was not to be seen as any sort of precedent. Yet in the guidelines published today, Starmer cites the two passages in that ruling that seemed to provide most protection for free speech, which noted:
…a message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside [section 127(i)(a) of the Communications Act 2003], for the simple reason that the message lacks menace.
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 [section 127].
So it would seem there’s been a slight change of mind, which is entirely reasonable and welcome (though on Twitter Chambers’ partner Sarah Tonner seems a little annoyed by this apparent switch).
Apart from that, what else have we got to discuss in these interim guidelines? Well, there’s a slight shift away from the use of the controversial section 127 of the Communications Act. At the consultation I attended, the various representatives, from diverse groups including anti-bullying and anti-harassment bodies, were keen to stress that section 127 was not appropriate for social media, and that it would be better to focus on patterns of harassment, abuse etc, and prosecute, if necessary, under anti-harassment laws such as the Protection from Harassment Act 1997. This is welcome – too often we focus on the medium rather than the behaviour.
More generally, there’s much on high thresholds on prosecution, and clear identification of public interest, perhaps not evident in the prosecutions of people such as Liam Stacey (sentenced to 56 days in prison for a “racially aggravated public order offence” after tweeting a poor taste joke about footballer Fabrice Muamba).
There is not much on the difference between “merely offensive”, which may not merit a prosecution, and “grossly offensive”, which could. As so often, this comes down to the probable perception of a right-thinking person. As in definitions of “obscenity” it seems a case of “I know it when I see it”.
There is a worry in the suggestion that removal of offensive posts by ISPs may provide a defence against prosecution.
While Facebook, Twitter et al will sometimes remove posts off their own bat, there is no absolute uniform system, and due to the sheer volume of traffic on social networks every day, some posts will slip through and others will be removed prematurely or inappropriately. Furthermore, this contains the germ of a suggestion of third-party liability, in which ISPs are held responsible for content. It will be crucial to examine this in the three-month public consultation on the guidelines which open today. It will also be worth examining whether section 127 of the Communications Act is appropriate at all in social media cases.
A decent start then, but more to be done.
Padraig Reidy is news editor at Index. Follow him on Twitter: @mepadraigreidy