Twitter users “free to speak not what they ought to say, but what they feel”

Paul Chambers v DPP [2012] EWHC 2157 - Read judgment

The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.

“I had decided to resort to terrorism”

Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:

“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”

and

…That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI.

Then, upon hearing that the airport had closed, he tweeted,

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!

There was no evidence that this tweet alarmed any of his followers. It was picked up several days later by an employee of the airport, and it was referred to another member of staff, who took did not consider it a credible threat, but as a matter of procedure it was referred to the airport police. They took no action, other than to refer it to South Yorkshire Police.

Mr Chambers was arrested and charged, then later convicted of the offence of sending by a public electronic communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003. He appealed from the Magistrates’ Court to the Crown Court, and then to the Divisional Court (part of the High Court), whose decision this article is concerned with.

Freedom of expression

One of the questions which the Court addressed was whether the conviction amounted to a breach of Mr Chambers’ Article 10 right to freedom of expression- both whether there was interference, and if so, whether the interference was justified.

The Court approached its task with regard to the need to read the legislation in question in a way which is compatible with the European Convention on Human Rights (something required of it by section 3 of the Human Rights Act 1998) and bearing Article 10, the right to freedom of expression, in particular in mind.

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. (Paragraph 28)

What is a message of menacing character?

The Court noted that in order to be menacing, as a matter of fact the people who receive or read it, or may reasonably be expected to do so, feel apprehension or fear. So, if those people instead,

…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 be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace. (Paragraph 30)

Other factors were also persuasive in the conviction being overturned. The tweet was not sent to anyone at the airport, but was intended as a conversation piece for the Mr Chambers’ followers. The language and punctuation were inconsistent with it being intended to be a serious threat. It would be unusual for an actual terrorist to make a threat which allowed him to be identified easily, as this message did.

No one who read the message in the first few days after it was posted appeared to be disturbed by it, including the airport police who took no urgent action:

No weight appears to have been given [by the Court below] to the lack of urgency which characterised the approach of the authorities to this problem, while the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message. (Paragraph 33)

Objectively therefore it was not open to the Court to find that the message was of a menacing character.

Intention?

The Court did not need to go on to consider the mental element of the offence, but did so briefly. It concluded,

…we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence.(Paragraph 36)

Further,

…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 [the mental element of the offence] required before conviction for the offence of sending a message of a menacing character will be established. (Paragraph 38)

New and complex challenges

The internet age has ushered in new and complex challenges for the law of freedom of expression. On the one hand, there are more ways than ever to reach wide audiences and communicate instantaneously. However, the scope for communications to be leaked in breach of confidentiality requirements, taken out of context or used to harass and alarm recipients has increased enormously.

This decision is a welcome, sensible approach to interpreting a statutory offence in a way which complies with Article 10. By taking into account factors such as the fact that no one actually felt threatened by the tweet in the days after it was posted and that it had been presented in a forum (where the sender was easily identified and making conversation with Twitter followers) and style which strongly suggested it was not an expression of a genuine threat to commit a serious criminal act, the Court took a real-world approach to applying the statute.

This does not mean Twitter users can rest easy, no matter what they tweet. The offence will catch genuine threats or otherwise menacing communications (and there are other potential criminal acts which might be committed by tweeting). But the case fortunately does clarify that messages which are jokes, and can clearly be identified as such, so that no one feels fear or apprehension as a consequence, should not lead to criminal convictions under this statute: a victory for freedom of expression. And, as the Lord Chief Justice memorably said:

… 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.

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Read more:

• Twitter joke trial: do “offensive” tweeters have freedom of expression rights?
• External commentary: The “Twitter joke” appeal: victory for Paul Chambers, Head of Legal;
• Censure of councillor for “sarcastic, lampooning and disrespectful” blog breached his free speech rights
• Hate speech and the meaning of “unacceptable behaviour”