8 January 2014

Policing the twittersphere

When journalist Caroline Criado-Perez succeeded in her campaign to keep at least one female historical figure on British banknotes, she can hardly have imagined the storm of vitriol and abuse this would stir up.

The Bank of England's announcement last July that Jane Austen would be appearing on the new £10 bank note prompted a deluge of over 80 horrific and frightening tweets to Criado-Perez, and other campaigners.

These included such charming sentiments as "I've only just got out of prison and would happily do more time to see you berried!! [sic] #tenfeetunder not scared at what you will do!"

Despite the fact that many of the tweets were sent from anonymous Twitter accounts, the police were able to identify those responsible with relative ease, and to subsequently charge them: not with bad spelling, but with sending tweets of a menacing character contrary to s 127(1)(a) of the Communications Act 2003.  Two of those responsible pleaded guilty to the charges yesterday, no doubt having been advised that they had little chance of successfully defending the charges and vindicating the decision to prosecute in the first place.

However, the Crown Prosecution Service has not always got it right when trying to police social media.  When Paul Chambers missed a flight to Belfast in 2010 because of bad weather he infamously tweeted: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!".  

The CPS in their wisdom decided this was a tweet of a menacing character, and Chambers was charged and convicted of the offence.  However, after a legal battle lasting over 2 years, the conviction was overturned by the High Court.  In the absence of any evidence that anyone who read the tweet found it to be of a menacing character, and in the context of timing, language and punctuation which were inconsistent with any intent for the tweet to be taken as a serious threat, the High Court ruled that, as was obvious to all, the tweet lacked menace.

This resulted in the Director of Public Prosecutions publishing "Guidelines on prosecuting cases involving communications sent via social media".  The Guidelines stress that the context in which any communication is sent will be highly material, and that threats which are not credible should not be prosecuted unless they form part of a campaign of targeted harassment.

The issue of context is similarly important in libel cases involving tweets. Last year's claim by Lord McAlpine against Sally Bercow turned on the context of her tweet "Why is Lord McAlpine trending? *Innocent face*".  The High Court rejected Ms Bercow's claim that she was simply asking her followers  a question, ruling instead that in circumstances where those followers were politically astute and where there was feverish speculation about the identity of a politician allegedly linked to a child abuse scandal, she was asking the question ironically and providing "the last piece in the jigsaw".

While the context may have been relatively easy to divine in the Chambers, Criado-Perez and Bercow cases, it is not always so clear cut.  Take for example, the recent furore over the use by Tottenham Hotspur fans of the word "Yid".  Spurs have a very large Jewish fan base and many of those fans, both Jew and non-Jew, proudly use the word as badge of allegiance in songs and banter on the terraces and social media.  However, the word can also be and is used as a derogatory term of abuse for Jews by fans of opposing teams. When policing a football match (and the tweets in the aftermath) it is not always easy for the police to distinguish between the different contexts in which the word can be used, and to determine which tweets merit prosecution, and which ones do not.

Those entrusted with keeping the Twitter airways clean will need to continue to exercise good judgement and common sense in the future to ensure that criminal charges are only brought under the Communications Act where tweets represent a serious threat or are grossly offensive, and that public money is not wasted on futile prosecutions.

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