Twitter Joke Trial: what is a “menacing” communication?

Image © John Allan – click image for further details

Paul Chambers’ two-and-a-half year battle to clear his name in the “Twitter joke trial” has ended with his acquittal in the Court of Appeal.

The Court of Appeal judgment is already available here. The key basis for the decision is that Paul Chambers’ tweet “lacked menacing character”, as required under s.127(1) Communications Act 2003 (the legislation under which Mr Chambers was prosecuted). Once that was established, there was little need to consider whether Mr Chambers had had a criminal motive in posting the tweet – though it’s pretty clear what the court thought on that issue anyway.

Some key points made in the judgment. First, the court insisted that the 2003 Act is not intended to interfere “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. (para 28)

If a message tips over from being “distasteful” into being “menacing” then an offence may be committed. However, this raises the question of what constitutes a “menacing” message. In particular, if the message does not “create a sense of apprehension or fear in the person who receives or reads it” then “it is difficult to see how it can sensibly be described as a message of a menacing character”:

So, if the person or persons who receive or read it, 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. (para 30)

In making this assessment, it is necessary to look not only at its “precise terms” and “any inferences to be drawn from its precise terms”, but to look also at “the context in and the means by which the message was sent” (para 31). In the case of Mr Chambers’ tweet, “the language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious warning”.

The court also considered it highly relevant that none of those who first encountered the message – Mr Chambers’ followers on Twitter, those responsible for security at Doncaster airport, South Yorkshire Police – had acted in a way which suggested urgent concern over what Mr Chambers had said. The prosecuting authorities and the previous courts had instead placed too much emphasis on how Mr Chambers’ message might have been understood by hypothetical readers “who might lack reasonable fortitude”.

All this led inevitably to the conclusion that:

on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed. (para 34)

What this decision demonstrates is that even a 140-character tweet has to be read in its context – a principle that has also been followed in non-judicial contexts, such as the Advertising Standards Authority’s sponsored tweets decision earlier this year. What matters is not how some hypothetical reader lacking “reasonable fortitude” might read the message, but whether it actually creates “fear or apprehension” in those to whom it is in fact communicated.

In short, the Court of Appeal seems to have drawn a helpful clarifying line between “outspoken” and “menacing”, which hopefully will ensure continuing freedom of expression online while still protecting people from genuinely menacing behaviour.

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