#FreeTheBexleyOne the hashtag goes. ‘Man faces jail for swearing on Twitter’ the Twitterati say. ‘Stop the assault on freedom of speech’ they implore.
Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?
John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003, which reads:
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
I have asked the CPS for the charge sheet, which has been so far unforthcoming – should it arrive and render the rest of this post incorrect, I will of course post corrections.
The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:
Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.
The second said:
‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’
Globally, the legal test for whether a message is grossly offensive, or of an indecent, obscene or menacing character is the ‘reasonable man’ test – that is, would a reasonable man, seeing that message, consider it grossly offensive, or of an indecent, obscene or menacing character. In order to determine this, the judge puts himself in the place of a reasonable man and asks himself that question.
So, assuming we are reasonable people we can ask ourselves that question. Looking at those two tweets, would we say that they were:
Indecent in character?
Obscene in character?
Menacing in character?
Using my internal moral compass, I say yes, no, no, yes. The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient. Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.
Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.
Are they indecent, or obscene? I’d say not. But the law doesn’t require all points to be made out – the law requires the messages to be either grossly offensive, or indecent in character, or obscene in character, or menacing in character. That a message is more than one is a bonus for the prosecution frankly.
Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:
‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’
Lord Bingham, DPP v Collins (here).
In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.