When you are speaking to someone face to face you are free to say something grossly offensive to them, or even to shout it out so that anyone within earshot can hear. It’s not a crime. Section 5 of the Public Order Act 1986 states that it doesn’t matter whether you let loose your volley of invective in front of someone who is likely to be insulted by it, or even offended by it, provided they are not likely to have been caused harassment, alarm or distress.
Furthermore, even for those who do break the law the penalties are modest: a maximum fine of £2,500 and no possibility of imprisonment.
In cyber-space things are different. Emailing, posting or tweeting something offensive is fine. No problem there. You can post offensive stuff all you like: it is not illegal. Posting something “grossly offensive” though is a different kettle of fish. That is a criminal offence punishable by up to six months imprisonment.
Got that? Offensive tweets – fine. Grossly offensive tweets – a criminal offence which could result in up to six months in the slammer. Oh, and it doesn’t matter whether or not your message was read by anyone who was likely to have been harassed, alarmed or distressed by it. It doesn’t matter whether your message was read at all. You will “ordinarily” be guilty provided that you intended to insult those to whom your message related, or you appreciated the risk that those to whom your message related might be insulted by it. That is the effect of s 127 of the Communications Act 2003 as it has been authoritatively interpreted by the House of Lords in DPP v Collins.
Is this a good time to give you my opinion that it is all a bit confusing?
The key differences are these: first; face-to-face speech is only criminalised if the words used are said within earshot of someone likely to be caused distress. The requirement of “distress” is not present when considering remarks made over the internet. Second, and perhaps to compensate for this, the law relating to insults communicated via the internet seeks to distinguish between language that is offensive, and language that is grossly offensive. Only the latter is criminalised. Third, at least according to the maximum sentences available, insults transmitted over the internet are considered to be much more serious than insults made face to face.
And finally – you know that so far I’ve been talking about insults over the internet? Well, the Communications Act doesn’t just cover the internet; it covers the use of any “public electronic communications network”. That, of course, includes Twitter, Facebook, blogs and emails. It also encompasses text messages, voicemails and even words spoken during a phone call.
Insults made via smoke-signals or by means of two old tins tied together with a string are fine though.
The contents of s 5 of the Public Order Act and section 127 of the Communications Act are not generally well known but they have been the subject of two cases of some notoriety this summer; R v Terry (“R v JT” for Chelsea fans) concerning alleged racist abuse on the football pitch and prosecuted under s 5 of the Public Order Act, and R v Paul Chambers – “The Nottingham Airport tweeter” – prosecuted under the Communications Act. Mr Chambers was actually prosecuted under the second part of s 127 which prohibits “menacing” messages, but otherwise its terms are the same as the part dealing with “grossly offensive” messages. There is no requirement that distress be caused and the maximum sentence is six months imprisonment. Both men were acquitted.
The Terry case in particular illustrates the inconsistency in this area of the law and the potential for perverse results. Mr Terry was acquitted because the magistrate was not sure that he had made a racist insult towards Anton Ferdinand. However, even if the judge had been sure of that, I still think there would have been a serious question as to whether it had been proven that Mr Terry had used the words alleged within the earshot of people – ie Mr Ferdinand himself and the other football players who were likely to have been caused “distress”. As I say in my article on the case, there is a distinction between being offensive and causing distress.
However, had Mr Terry tweeted, emailed, texted or even spoken those words during a private phone-call to a friend, it wouldn’t have mattered whether anyone was distressed or was likely to have been distressed by them – he would have been guilty of an offence under the Communications Act simply by using grossly offensive language.
To wrap up, the criminal law as it relates to offensive language is a bit of a mess. It’s an area that is becoming more important, perhaps as a corollary of our move into the new “Information Age”. At present, offensive language communicated over a “public electronic communications network” such as the internet is more tightly restricted than language used face to face. I’m not sure that is right. Before we convict someone of a criminal offence for using offensive language, over any medium, shouldn’t we have to show that their words caused someone distress – or at least were communicated in such a way as to have been likely to have caused someone distress?