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.

Is yours a winning app?

Samsung has launched a competition for developers to create an innovate app for the Samsung Galaxy Note and Galaxy Tab, with a total prize fund of $4.08 million (£2.6 million) on offer. In addition to the cash prize, the winning app developers in the Samsung Smart App Challenge 2012 will receive marketing support to promote their apps.

If you’re not lucky enough to be one of the winning developers, there are still some steps that you can take to try to ensure that your app is successful and doesn’t fall foul of the legal pitfalls often encountered by app developers. See my update on legal issues for app developers for more details.

“No derogatory links”: Censorship? Or just lazy drafting?

The latest row to hit the London Olympics – though somewhat more minor than the news earlier this week about bringing in the army to plug the gap in security left by G4S – is over the “linking policy” in their website’s terms of use. This states that:

You may create your own link to the Site, provided that your link is in a text-only format. You may not use any link to the Site as a method of creating an unauthorised association between an organisation, business, goods or services and London 2012, and agree that no such link shall portray us or any other official London 2012 organisations (or our or their activities, products or services) in a false, misleading, derogatory or otherwise objectionable manner.

It’s those last words that have caught people’s attention. “Hang on! Are LOCOG seriously saying that you can’t link to their site if you say nasty things about them? That’s censorship!”

I’m pretty sure that there is absolutely no intent on LOCOG’s part to censor people through this policy. That’s because I’m pretty sure there is absolutely no intent on LOCOG’s part concerning this provision, full stop. A Google search quickly shows up literally hundreds of other sites using precisely the same wording:

So what this shows is not the sinister, dissent-stifling instincts of LOCOG, but the dangers of unthinkingly adopting standard legal precedents without thinking through how they might read to others. This can happen, in particular, with the sort of legal terms that absolutely no one ever reads (such as website terms of use) except on that one occasion when you’re a massively high-profile organisation whose motives some people are inclined to mistrust (such as when you’re the London Olympics).

This “linking policy” is clearly someone’s standard boilerplate, and has been used without incident by them for years. One wonders whether any of the companies using this wording have ever sought to tried to enforce it against someone by insisting that they remove a “derogatory” link. In most cases I suspect they wouldn’t get very far – just as I suspect they wouldn’t get very far if they tried to enforce the “if you disagree with these terms you must stop using our site” wording that is often found in such terms.

Maybe one good thing that could come out of this incident is to make companies think more carefully about the information they provide on their websites. Do they need to be so “legalistic” in the first place, and have they given any thought to whether they would ever try to enforce any of the restrictions they claim to impose?

Cookies: what’s happening out there?

Since the end of May, website users will have noticed a flurry of popups and banner messages inviting them to read (and in some cases agree to) information about how sites use cookies.

This has arisen as website owners finally get to grips with the new law on cookies and consent (see various previous posts), which requires websites to obtain consent from users before putting cookies on their computers of mobile devices.

Over the subsequent weeks, it seems a consensus has begun to emerge among websites as to how to inform users and obtain – or, more usually, infer – consent from users.

I wrote an article recently for the Guardian Media Network that gave some background to this. My firm has also just published a briefing note (PDF) which looks in more detail at how websites can show that users have consented to the use of cookies.

The briefing note refers readers to two essential guides for compliance: the Information Commissioner’s guidance (PDF) as issued at the end of May, and the International Chamber of Commerce’s guide (PDF) to the various types of cookie used by websites, and how to comply in respect of each.

The overall message, though, is: for most websites, especially those who avoid use of “targeting and advertising” cookies, compliance should be possible without having to infuriate your users with intrusive popups.

Battle of the tablets: both sides win? Or both sides lose?

The latest twist in the worldwide running battles between Apple and Samsung has been won by Samsung, as the Patents Court in London ruled that Samsung’s Galaxy Tab doesn’t infringe Apple’s registered design for the iPad. The IPKat blog has a good write-up here, and the decision itself is here (.docx).

The test for whether a product infringes a registered design is whether it “produces on the informed user a different overall impression” from the registered design. Judge Birss QC held that, while the two companies’ tablets look “very, very similar” from the front (para 184), the “informed user” would also look at the sides and the back of the device – and here, the Samsung tablets were, Judge Birss considered, very different.

That said, I doubt that Samsung will be rushing to draw customers’ attention to how Judge Birss expressed this difference:

The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.

“They are not as cool”: probably the first time those words have formed the basis for an English judge’s decision!

So the result can be seen as a mutually Pyrrhic victory. Samsung wins its case, but only because its products are “not as cool” as Apple’s; while Apple’s design values win the endorsement of an English judge, but it finds itself unable to enforce its UK registered design against an increasingly significant competitor.