In my previous post, I discussed what would happen if your airline made a mistake with your online booking. Let’s assume that you successfully booked your flight, and have turned up to the airport, only to find that your flight is cancelled. What would you do? Well, on 6 January 2010, it happened to Paul Chambers, and he sent a frustrated tweet:
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!!
I could have done as much myself (I am Spartacus). Unfortunately, Chambers found himself in very hot water: he was convicted of sending by a public electronic communication network a message of a “menacing character” contrary to section 127(1)(a) and (3) of the Communications Act 2003 (the Act); he was fined £385 and ordered to pay £600 costs. Fortunately for Chambers, there was eventually a happy ending: his appeal against this conviction was allowed today.
Congratulations to @pauljchambers and his fiancée @crazycolours, and kudos to his legal team, @DavidAllenGreen, @John_Cooper_QC, @sarahprz82 and @major_clanger. The case has been newsworthy online, especially on twitter at the hashtag #twitterjoketrial; and the successful of the appeal has been widely reported. The decision itself is an important interpretation of section 127, which provides:
(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.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
In today’s case, Chambers v Director of Public Prosecutions  EWHC 2157 (QB) (27 July 2012), Lord Judge CJ (with whom Owen and Griffith Williams JJ concurred) held that Twitter falls within the ambit of the section:
25. In our judgment, whether one reads the “tweet” at a time when it was read as “content” rather than “message”, at the time when it was posted it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1).
The heart of the case was whether the tweet constituted a message of “menacing character”, and Lord Judge CJ held that it did not:
30. … a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.
31. Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent. …
Having considered the terms, character, context and circumstances of the tweet, and the operation of twitter, it was clear to Lord Judge CJ that it could not be said to be menacing. On that basis, the appeal was allowed.
However, the Court also went to consider another aspect of the section. Lord Judge CJ held that the mental element of the offence (the mens rea) is satisfied either if the offender is proved to have intended that the message should be of a menacing character or if the offender appreciated the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. And he held that, since
the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.
It was a comprehensive win for Chambers. It should never have come to this. But it will be reassuring for the future. Meantime, as Lord Judge CJ observed during the course of his judgment:
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. … we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.