Introduction
R v. Paul Chambers (appealed to the High Court as Chambers v. Director of Public Prosecutions), provoked widespread discussion as to how far thought, expression and humour can be policed online. The case, and the conviction under s127(a) of the Communications Act 2003 (“Act”), was widely been condemned in the press, and by high profile celebrities such as Stephen Fry, as unfair and was appealed three times. After the first two appeals failed, the London High Court quashed the conviction. This article will take a look the Court analysis in the Second High Court Appeal and the potential impact on the future of prosecutions.
Background
The ‘Twitter Joke Trial’ occurred as a result of tweets sent by Paul Chambers to a fellow Twitter user he befriended from Northern Ireland called @Crazycolours. Ultimately a romance developed and Chambers intended to fly to meet @Crazycolours in Belfast. However, as the old adage would have us believe, the course of true love did not run smoothly. Chambers, who was due to fly out from Robin Hood Airport in Nottingham, was alerted to the fact that due to adverse weather conditions, there was potential for disruption to the flights coming in and out of the terminal. Chambers decided to express his dissatisfaction though Twitter, leaving the following Tweets for his beau:
@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism
@ Crazycolours: That's the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI
Unfortunately for Chambers, @Crazycolours did not reply, the messages floated in digital space without context and Robin Hood airport did in fact close. Filled with dismay, Chambers took to his twitter account and posted the following message on the microsite:
“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!”
Unlike the cold spell, the messages were about to cause a furor that would not blow over and much like the tongue in cheek threat contained in the tweets, they were a time bomb about to be set off as while the Tweets were intended for @crazycolours they were also visible on the timelines of any of Chambers followers and also searchable by anyone on Twitter.
A week later, an off-duty manager at the airport found the message while doing an unrelated computer search. The airport management considered the message to be "not credible" as a threat, but contacted the police anyway. Chambers was arrested by anti-terror squad on suspicion of involvement in a bomb hoax. He was later charged with sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to s127(a) of the Act. On 10 May, he was found guilty at Doncaster magistrate’s court, fined £385 and ordered to pay £600 costs. He lost his job, a relatively responsible position as a trainee accountant as a consequence.
The Appeals
Chambers subsequently appealed to the Crown Court against his conviction. The Court took the position that the Tweet was “menacing in its content and obviously so. It could not be clearer. Any ordinary person reading this would see it in that way and be alarmed.” However, it would seem that the court largely ignored the important role of context. The airport itself even went so far as to state that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” The public reaction to the outcome of the appeal said much about the opinion of an “ordinary person”, which seemingly had so easily been set aside by the Court. Thousands of Twitter users responded by reposting Chambers' Tweet including the hash tag #iamspartacus, in reference the climactic "I am Spartacus!" scene in the 1960 film Spartacus.
Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal. Chambers lost this further appeal, at the High Court on 8 February 2012, before Lord Justice Gross and Irwin LJ. The appeal was entirely on points of law and centered on the correct interpretation of section 127(1) of the Act. The case was referred for a second appeal.
The Second High Court Appeal
On 27 July Chambers’ conviction was quashed. The Court focused their attention upon two points, one definitional and the other on the intent behind the tweet. The approved judgment by the Lord Chief Justice, Lord Judge, stated "the appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further."
The Court emphasised that, while the offence under s127 was not one requiring proof of specific intent, the mental element of the offence is directed exclusively to the state of the mind of the offender. Interestingly the Court took the view that English law (prior to the Act and the Act itself) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. As such it was unlikely that the necessary mens rea required for conviction of sending a message of a menacing character was established.
The Court did not deal with each aspect of the wide-ranging questions posed by the Crown Court for decision but did agree with the Crown Court judge's analysis that a tweet was indeed a message capable of supporting a charge under the Act. With regard to is the message was menacing, the Court was clearly impatient of the magistrates and Crown Courts views:
'if the person or persons who receive or read [a message], 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.'
The Court noted that the Act predated the advent of Twitter (created in 2006) and that the statutory reference to "menacing" was itself based on the wording of the Post Office (Amendment) Act 1935.. As such the Court considered that the intention of the Act was not to create interference with the essential freedoms of speech and expression enshrined in Article 10 of the European Convention on Human Rights which the Court were required to have regard to as required by section 3 of the Human Rights Act 1998. Lord Judge, LCJ, commented,
“The 2003 Act did not create some newly minted interference 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”.
However, this did not preclude Twitter from being a medium by which such a communication could be made. The Court stated 'Twitter', as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.”
Public Electronic Communications Network
The contents of the judgement so far was thus relatively uncontroversial, it is clear that intent is an important determining factor when looking at if an offence has been committed under the Act and that a balancing exercise that must be undertaken in relation to the Defendants Article 10 rights. It also appeared a matter of common sense that such communications, coupled with the necessary intent, could be communicated via the micro blogging site. However, the groundbreaking element of the Court’s analysis came from their finding that the internet itself constitutes a public network which may have far reaching applications for the future of what may be caught within the scope of potential prosecutions.
In defining the internet this, the Court stated that the Internet 'is plainly a public electronic communications network provided for the public and paid for by the public through the various service providers we are all familiar with' and that 'potential recipients of the message were the public as a whole, consisting of all sections of society'.
The Court’s reasoning derived from an analysis of the internets network infrastructure as a series of links. These links cover networks of networks and services linking individuals, service providers, network providers, platform providers and content providers.
However, if, as the Court did in Chambers, these groupings of networks are considered as a single entity, then it has the potential cast a net over networks previously considered 'private' or 'bespoke'. Such examples could include networks unavailable to the public which are nevertheless able to connect with the public as well as their supporting platforms and applications e.g. Facebook and Twitter. However the definition of a “public electronic communications network” is derived from an EU concept developed for the purposes of regulation. The European Framework for Electronic Communications is designed around the distinction between public and private networks and services. The former attracts comprehensive regulation which non-public networks are not required to conform to e.g. rights and obligations to negotiate interconnection with other public network providers. The similar term 'Public Communications Network' entails further requirements to ensure the availability of the public network, such as taking necessary measures to maintain the perpetual effective functioning of the network and disaster plans for system breakdowns.
Stringent guidelines also apply with regard to the protection of consumers, including the obligation to publish quality of service information if instructed to do so by Ofcom and offering contracts with specified minimum terms to end-users. There are additional requirements with regards to data retention and lawful intercept requirements such as the relevant government authorities requiring operators of public networks to retain communications data relating to the traffic passing over its network and information about subscribers, to be made available to authorities on request. A public network provider may also be instructed to maintain the capability to intercept communications over its network at the direction of the government.
Conclusion
The outcome of the judgment was in many ways a victory for common sense. The issue of a public communications network however is likely to cause much more debate than can be contained in 140 characters. By describing and defining the Internet as a 'public electronic communications network' the judgment appears to cast a net over a wide range of network and service providers within the scope of EU and UK communications law. It leaves open the possibility, for example, that Twitter could be bound by the above regulatory requirements which could potentially place significant burdens on the operators of such sites in the future. In Chambers, the prosecution successfully established that the message was sent over a public electronic communications network even though the defendant won his case overall, the future implications of the judgement of the divisional court on the future landscape of policing the online environment will remain to be seen.
R v. Paul Chambers (appealed to the High Court as Chambers v. Director of Public Prosecutions), provoked widespread discussion as to how far thought, expression and humour can be policed online. The case, and the conviction under s127(a) of the Communications Act 2003 (“Act”), was widely been condemned in the press, and by high profile celebrities such as Stephen Fry, as unfair and was appealed three times. After the first two appeals failed, the London High Court quashed the conviction. This article will take a look the Court analysis in the Second High Court Appeal and the potential impact on the future of prosecutions.
Background
The ‘Twitter Joke Trial’ occurred as a result of tweets sent by Paul Chambers to a fellow Twitter user he befriended from Northern Ireland called @Crazycolours. Ultimately a romance developed and Chambers intended to fly to meet @Crazycolours in Belfast. However, as the old adage would have us believe, the course of true love did not run smoothly. Chambers, who was due to fly out from Robin Hood Airport in Nottingham, was alerted to the fact that due to adverse weather conditions, there was potential for disruption to the flights coming in and out of the terminal. Chambers decided to express his dissatisfaction though Twitter, leaving the following Tweets for his beau:
@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism
@ Crazycolours: That's the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI
Unfortunately for Chambers, @Crazycolours did not reply, the messages floated in digital space without context and Robin Hood airport did in fact close. Filled with dismay, Chambers took to his twitter account and posted the following message on the microsite:
“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I’m blowing the airport sky high!!”
Unlike the cold spell, the messages were about to cause a furor that would not blow over and much like the tongue in cheek threat contained in the tweets, they were a time bomb about to be set off as while the Tweets were intended for @crazycolours they were also visible on the timelines of any of Chambers followers and also searchable by anyone on Twitter.
A week later, an off-duty manager at the airport found the message while doing an unrelated computer search. The airport management considered the message to be "not credible" as a threat, but contacted the police anyway. Chambers was arrested by anti-terror squad on suspicion of involvement in a bomb hoax. He was later charged with sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to s127(a) of the Act. On 10 May, he was found guilty at Doncaster magistrate’s court, fined £385 and ordered to pay £600 costs. He lost his job, a relatively responsible position as a trainee accountant as a consequence.
The Appeals
Chambers subsequently appealed to the Crown Court against his conviction. The Court took the position that the Tweet was “menacing in its content and obviously so. It could not be clearer. Any ordinary person reading this would see it in that way and be alarmed.” However, it would seem that the court largely ignored the important role of context. The airport itself even went so far as to state that “there was no evidence at this stage to suggest that this is anything other than a foolish comment posted as a joke for only his close friends to see.” The public reaction to the outcome of the appeal said much about the opinion of an “ordinary person”, which seemingly had so easily been set aside by the Court. Thousands of Twitter users responded by reposting Chambers' Tweet including the hash tag #iamspartacus, in reference the climactic "I am Spartacus!" scene in the 1960 film Spartacus.
Following an appeal to the High Court in February, the judges who heard the case were unable to reach agreement on the correct interpretation of s127 and the case was referred for a second appeal. Chambers lost this further appeal, at the High Court on 8 February 2012, before Lord Justice Gross and Irwin LJ. The appeal was entirely on points of law and centered on the correct interpretation of section 127(1) of the Act. The case was referred for a second appeal.
The Second High Court Appeal
On 27 July Chambers’ conviction was quashed. The Court focused their attention upon two points, one definitional and the other on the intent behind the tweet. The approved judgment by the Lord Chief Justice, Lord Judge, stated "the appeal against conviction will be allowed on the basis that this 'tweet' did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further."
The Court emphasised that, while the offence under s127 was not one requiring proof of specific intent, the mental element of the offence is directed exclusively to the state of the mind of the offender. Interestingly the Court took the view that English law (prior to the Act and the Act itself) had long been tolerant of satirical and even distasteful opinions about matters of both a serious and trivial nature. As such it was unlikely that the necessary mens rea required for conviction of sending a message of a menacing character was established.
The Court did not deal with each aspect of the wide-ranging questions posed by the Crown Court for decision but did agree with the Crown Court judge's analysis that a tweet was indeed a message capable of supporting a charge under the Act. With regard to is the message was menacing, the Court was clearly impatient of the magistrates and Crown Courts views:
'if the person or persons who receive or read [a message], 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.'
The Court noted that the Act predated the advent of Twitter (created in 2006) and that the statutory reference to "menacing" was itself based on the wording of the Post Office (Amendment) Act 1935.. As such the Court considered that the intention of the Act was not to create interference with the essential freedoms of speech and expression enshrined in Article 10 of the European Convention on Human Rights which the Court were required to have regard to as required by section 3 of the Human Rights Act 1998. Lord Judge, LCJ, commented,
“The 2003 Act did not create some newly minted interference 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”.
However, this did not preclude Twitter from being a medium by which such a communication could be made. The Court stated 'Twitter', as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.”
Public Electronic Communications Network
The contents of the judgement so far was thus relatively uncontroversial, it is clear that intent is an important determining factor when looking at if an offence has been committed under the Act and that a balancing exercise that must be undertaken in relation to the Defendants Article 10 rights. It also appeared a matter of common sense that such communications, coupled with the necessary intent, could be communicated via the micro blogging site. However, the groundbreaking element of the Court’s analysis came from their finding that the internet itself constitutes a public network which may have far reaching applications for the future of what may be caught within the scope of potential prosecutions.
In defining the internet this, the Court stated that the Internet 'is plainly a public electronic communications network provided for the public and paid for by the public through the various service providers we are all familiar with' and that 'potential recipients of the message were the public as a whole, consisting of all sections of society'.
The Court’s reasoning derived from an analysis of the internets network infrastructure as a series of links. These links cover networks of networks and services linking individuals, service providers, network providers, platform providers and content providers.
However, if, as the Court did in Chambers, these groupings of networks are considered as a single entity, then it has the potential cast a net over networks previously considered 'private' or 'bespoke'. Such examples could include networks unavailable to the public which are nevertheless able to connect with the public as well as their supporting platforms and applications e.g. Facebook and Twitter. However the definition of a “public electronic communications network” is derived from an EU concept developed for the purposes of regulation. The European Framework for Electronic Communications is designed around the distinction between public and private networks and services. The former attracts comprehensive regulation which non-public networks are not required to conform to e.g. rights and obligations to negotiate interconnection with other public network providers. The similar term 'Public Communications Network' entails further requirements to ensure the availability of the public network, such as taking necessary measures to maintain the perpetual effective functioning of the network and disaster plans for system breakdowns.
Stringent guidelines also apply with regard to the protection of consumers, including the obligation to publish quality of service information if instructed to do so by Ofcom and offering contracts with specified minimum terms to end-users. There are additional requirements with regards to data retention and lawful intercept requirements such as the relevant government authorities requiring operators of public networks to retain communications data relating to the traffic passing over its network and information about subscribers, to be made available to authorities on request. A public network provider may also be instructed to maintain the capability to intercept communications over its network at the direction of the government.
Conclusion
The outcome of the judgment was in many ways a victory for common sense. The issue of a public communications network however is likely to cause much more debate than can be contained in 140 characters. By describing and defining the Internet as a 'public electronic communications network' the judgment appears to cast a net over a wide range of network and service providers within the scope of EU and UK communications law. It leaves open the possibility, for example, that Twitter could be bound by the above regulatory requirements which could potentially place significant burdens on the operators of such sites in the future. In Chambers, the prosecution successfully established that the message was sent over a public electronic communications network even though the defendant won his case overall, the future implications of the judgement of the divisional court on the future landscape of policing the online environment will remain to be seen.
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