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TO RANT, VENT AND CONVERSE: PROTECTING LOW LEVEL DIGITAL SPEECH

Published online by Cambridge University Press:  15 June 2012

Jacob Rowbottom
Jacob Rowbottom*
Affiliation:
University College, Oxford.
*
Address for correspondence: Mr Jacob Rowbottom, University College, Oxford OX1 4BH. Email: [email protected]
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Abstract

Several recent cases have highlighted the range of legal controls that can be applied to expression on social networks and other amateur digital content. This article identifies three trends in the regulation of digital communications. First, such communications are subject to a wide range of laws, including those primarily regulating the mass media, public order and targeted communications. Second, the persistence and searchability of digital messages make such communications more likely to come to the attention of litigators and prosecutors. Thirdly, that the established approach to freedom of expression under Article 10 of the ECHR tends to protect speech that is deemed to be of “high value”, and therefore does little to protect much internet content. This article calls for some greater protection to be afforded to communications that are casual and amateur. The freedom to converse outlined in this article does not call for absolute protection, but seeks to ensure that any controls on expression are proportionate. In particular, alternatives to the criminal law are considered.

Keywords

Human rightsfreedom of expressionpublic ordercriminal lawdigital communications
Type
Articles
Information
The Cambridge Law Journal , Volume 71 , Issue 2 , July 2012 , pp. 355 - 383
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 See John Perry Barlow, “Jack In, Young Pioneer!”, Keynote Essay for the 1994 Computerworld College Edition (http://w2.eff.org/Misc/Publications/John_Perry_Barlow/HTML/jack_in_young_pioneer.html) For discussion of the wild west metaphor see Yen, A., “Western Frontier or Feudal Society?: Metaphors and Perceptions of Cyberspace” (2002) 17 Berkeley Tech. L.J. 1207Google Scholar.

2 R v Blackshaw [2011] EWCA Crim 2312 at [59–64].

3 Ibid.

4 The Guardian, August 17, 2011. See also “An alarming benchmark: Sentencing the rioters” The Guardian, 19 October 2011.

5 See B. Leiter, “Cleaning Cyber-Cesspools: Google and Free Speech” in S. Levemore and M. Nussbaum (eds.), The Offensive Internet (Cambridge, Mass., 2010).

6 Communications on the digital media can also fall foul of contempt of court laws. However, where a juror commits the offence, it is normally due to a failure to follow a judge's instruction. Such cases are distinct from casual conversations and heated discussions that are the primary concern of this article, so will not be considered here.

7 [2006] EWHC 860 (QB).

8 Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB).

9 [2012] EWHC 756 (QB). £75,000 was awarded under the ordinary compensatory principles, and a further £15,000 was awarded taking into account aggravating features.

10 See Canadian Supreme Court in Crooks v Newton [2011] SCC 47. See also Islam Expo Ltd v The Spectator (1828) Ltd [2010] EWHC 2011.

11 M. Collins, The Law of Defamation and the Internet, 3rd ed. (Oxford 2010) at [5.38–5.41].

12 See Steel v UK (2005) 41 E.H.R.R. 403.

13 Mitchell, P., “Nineteenth century defamation: was it a law of the press?” (2008) 75 Amicus Curiae 27Google Scholar.

14 See evidence from the Media Lawyers Association in Jackson L.J., Review of Civil Litigation Costs, Preliminary Report (2009) Appendix 17. P. Milmo and W.V.H. Rogers, Gatley on Libel and Slander, 11th ed. (London, 2008) at [1.12].

15 D. Eady, “Defamation: some recent developments and non-developments” in M. Saville and R. Susskind (ed.), Essays in Honour of Sir Brian Neill (London 2003) p.155 and Coad, J., “Reynolds and public interest – what about truth and human rights?” (2007) 18 Ent. L.R. 75Google Scholar at 84.

16 Reynolds v Times Newspapers [2001] 2 AC 127.

17 Seaga v Harper [2008] UKPC 9.

18 In Spiller v Joseph [2010] UKSC 53, Lord Phillips noted at [99] that “the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed”, and, as a result, “fair comment will be robbed of much of its efficacy” if a more onerous requirement for that defence was maintained.

19 As statements on the internet are in writing and recorded in permanent form, an action will be in libel rather than slander, and requires no proof of special damage. See Gatley on Libel, note 14 above at [3.11], noting that the issue has not received much discussion.

20 R v Sheppard [2010] EWCA Crim 65.

21 S v D.P.P. [2008] EWHC 438 (Admin).

22 “Fan sentenced for Munich taunts” The Independent, 3 March 2011. It is not clear which section of the Public Order Act the defendant was convicted under, but the BBC report refers to an intention to cause harassment, alarm and distress, suggesting the conviction was under s.4A, “Crawley Town fan sentenced for mocking Munich air crash” 3 March 2011: http://www.bbc.co.uk/news/uk-england-12634907.

23 Crown Prosecution Service news blog, 28 March 2012, http://blog.cps.gov.uk/2012/03/liam-staceys-conviction-for-tweet-about-fabrice-muamba.html.

24 See also s.6(3) on the mental element.

25 The decision was upheld in the Queen's Bench Division, S v D.P.P. [2008] EWHC 438 (Admin).

26 Dehal v CPS [2005] EWHC 2154 (Admin) at [12].

27 Public Order Act 1986, s.18–23

28 Public Order Act 1986 S.29B–G.

29 In the case of the racial hatred offences, it is necessary to show that hatred is likely to be stirred, while in the religion and sexual orientation offences the use of threatening, abusive and insulting words with an intention to stir up hatred is sufficient.

30 See discussion in S v D.P.P. at [12] and [15]. Maurice Kay L.J. implies that s.5 does not apply to websites, when he states that the omission in s.4A of the “within sight or hearing” provision “was conditioned by an appreciation of the problems created by the posting of offensive material on websites”. The case is not conclusive, as the discussion is focused on whether for the purpose of s.4A the victim must actually see the material on the internet, or whether it is sufficient to be told of its existence or shown a copy by a third party at a later date. In their discussion of online harassment, Geach and Haralambous assume that s.5 does apply to expression on the internet, see Haralambous, N. and Geach, N., “Regulating Harassment: Is the Law Fit for the Social Networking Age?” (2009) 73 Journal of Criminal Law 241Google Scholar.

31 See R v John Morse and John Tyndall (1986) 8 Cr. App. R. (S.) 369.

32 See Law Commission, Report on Poison Pen Letters (1985) Law Com. No. 147.

33 Malicious Communications Act, s.1. The offence also applies to communications that are indecent or grossly offensive in nature.

34 Haralambous, N. and Johnson, M., “Facebook – Friend of Foe” (2010) 174 J.P.N. 469Google Scholar.

35 “Britain's Got Talent blogger cautioned by police” The Guardian, 3 July 2011 (http://www.guardian.co.uk/tv-and-radio/2011/jul/03/britains-got-talent-blogger-cautioned).

36 The Northern Echo, 28 February 2012.

37 The Northern Echo, 6 February 2012.

38 Knowledge of the recipient's likely reaction is only relevant when making inferences about the defendant's intention, and not as to whether the message itself was grossly offensive. See D. Ormerod, “Telecommunications: sending grossly offensive message by means of public electronic communications network” [2007] Crim. L.R. 98.

39 See Lord Brown in D.P.P. v Collins [2006] UKHL 40 at [26–27].

40 See discussion D. Ormerod, note 38 above.

41 s.127(4).

42 See the view of the Scottish Government in the Policy Memorandum on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill (2011) at [34].

43 At the time of writing, a decision on a further appeal before the High Court is pending.

44 “Chef Guilty of MLA Threat”, The Mirror (Ulster Edition) 23 June 2011. The court also heard that the M.P. was genuinely distressed at the comment.

45 Huddersfield Daily Examiner, 10 December 2010.

46 For example, section 5 of the Public Order Act did not cover the sending of letter in order to avoid an overlap with the Malicious Communications Act. See HC Deb. vol. 96 col. 962 (30 April 1986). See Chappell v D.P.P. (1988) 89 Cr. App. R. 82 stating that the Public Order Act 1986 does not apply where a letter is delivered in a sealed envelope.

47 The term “persistent” is used in D. Boyd, “Social Network Sites as Networked Publics: Affordances, Dynamics, and Implications” in Z. Papacharissi (ed.), Networked Self: Identity, Community, and Culture on Social Network Sites (Oxford 2010). The level of persistence may vary with the social network or forum. Twitter messages remain accessible to the public for a limited period. However, that is more persistent than an offline conversation, and also does not stop the message being copied and made available in other forums for longer periods.

48 See Justice Unions' Parliamentary Group, Independent Parliamentary Inquiry into Stalking Law Reform (2012). The government is seeking to meet these demands by creating a new offence of stalking, via an amendment to the Protection from Harassment Act 1997 made by the Protection of Freedoms Bill 2012, which largely builds on the existing offences of harassment. It is not clear whether this measure will fully address the campaigner's concerns about cyberstalking, and it is possible that demands for further laws will be made in future.

49 D. Solove, ‘Speech, Privacy and Reputation on the Internet’ in The Offensive Internet, note 5 above, p.16. See also C. Sunstein, On Rumours (London 2009), 62.

50 Solove, ibid.

51 For example, see Abdul v D.P.P. [2011] EWHC 247 (Admin).

52 See C. Sunstein, Democracy and the Problem of Free Speech (New York 1993), 122–3.

53 See R. Clayton and H. Tomlinson, The Law of Human Rights, 2nd ed. (Oxford 2009) at [15.297]; D.J. Harris, M. O'Boyle, E.P. Bates and C.M. Buckley, Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights (Oxford 2009), 455–465.

54 Lord Nicholls in R (ProLife Alliance) v BBC [2003] UKHL 23 at [6].

55 TV Vest As & Rogaland Pensjonistparti v Norway [2008] ECHR 21132/05 at [59].

56 Campbell v MGN [2004] UKHL 22 at [148].

57 Ibid. See also Lord Bingham in R v Shayler [2002] UKHL 11 at [21].

58 Muller v Switzerland (1991) 13 E.H.R.R. 212, Otto Preminger v Austria (1995) 19 E.H.R.R. 34 and IA v Turkey (2007) 45 E.H.R.R. 30.

59 Markt Intern v Germany (1989) 12 E.H.R.R. 161 at [33]. See also McCombe J, R (on the application of British American Tobacco UK Ltd) v The Secretary of State for Health [2004] EWHC 2493 (Admin) at [28].

60 Campbell v MGN [2004] UKHL 22 at [149].

61 Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 at [38].

62 Gorelishvili v Georgia (2009) 48 E.H.R.R. 36 at [40].

63 Lehideux and Isornia v France (1998) 5 B.H.R.C. 540 at [53]. Norwood v United Kingdom (2004) 40 E.H.R.R. SE 111.

64 Zimmerman, D., “Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort” (1983) 68 Cornell L. Rev. 291Google Scholar.

65 Ibid.

66 Zimmerman wrote with the balance between free speech and privacy in mind. Other considerations may apply where the balance has to be struck with public order.

67 For an overview see Post, R., “Participatory Democracy and Free Speech” (2011) 97 Virginia Law Review 477Google Scholar, and Weinstein, J., “Participatory Democracy as the Central Value of American Free Speech Doctrine” (2011) 97 Virginia Law Review 491Google Scholar.

68 See Baker, C. Edwin, “Is Democracy a Sound Basis for a Free Speech Principle” (2011) 97 Virginia Law Review 515Google Scholar and Volokh, E., “The Trouble with ‘Public Discourse’ as a Limitation on Free Speech Rights” (2011) 97 Virginia Law Review 567Google Scholar.

69 For example, Weinstein states that there are strong arguments for treating “conversations” among friends as outside “public discourse” and for any constitutional protection to be afforded under the US Due Process Clauses. Weinstein, J., “Participatory Democracy as a Theory of Free Speech: A Reply” (2011) 97 Virginia Law Review at 656Google Scholar.

70 M. Castells, Communication Power (Oxford 2009).

71 The Observer and the Guardian v United Kingdom (1992) 14 E.H.R.R. 153 at [59]. See also R v Shayler [2002] UKHL 11 at [21].

72 Stoll v Switzerland (2008) 47 E.H.R.R. 59 at [104].

73 For example, see Goodwin v NGN [2011] EWHC 1437 at [125] on difference effects of blogs and newspapers.

74 Lindon v France (2008) 46 E.H.R.R. 35 at [66] and [68]

75 Such regulations have been justified as a result of the power and pervasiveness of the medium, see R (Prolife Alliance) v BBC [2003] UKHL 23 at [21] and [124].

76 Alınak v Turkey (2005) (Application no. 40287/98) at [45]. The publication was a novel, so was not truly low-level speech, but illustrates that the size of the audience is an important factor when determining the level of harm and the proportionality of the restriction. See also Klein v Slovakia (2010) 50 E.H.R.R. 15 at [48].

77 Fuentes Bobo v Spain (2001) 31 E.H.R.R. 50 at [46].

78 ibid. See also Gundez v Turkey (2005) 41 E.H.R.R. 5 at [49]. See also the Defamation Act 1996, s.1(3)(d).

79 R (Gaunt) v Office of Communications [2011] EWCA Civ 692 at [43].

80 Ibid.

81 See Clift v Clarke [2011] EWHC 1164 (QB) discussed below.

82 Jameel v Wall Street Journal [2006] UKHL 44 at [33], [51] and [111].

83 Groppera Radio AG v Switzerland [1990] ECHR 10890/84 at [68]. In Lindon v France (2008) 46 E.H.R.R. 35 at [42] the court said of the defendants: “Being professionals in the field of publishing it was incumbent on them to apprise themselves of the relevant legal provisions and case law in such matters, even if it meant taking specialised legal advice”.

84 See Jameel v Dow Jones [2005] EWCA Civ 75.

85 Gatley on Libel, note 14 above at [3.35].

86 Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [14]. Eady J. emphasised at [108] that his ruling did not suggest “that blogging cannot ever form the basis of a legitimate libel claim” and that his conclusion was specific to the facts of the case.

87 ibid at [17].

88 Clift v Clarke [2011] EWHC 1164 (QB) at [36]. See also Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 (QB) referring to “saloon-bar moanings”.

89 At [37].

90 In Smith v ADVFN Plc [2008] EWHC 1797 (QB), Eady J. also pointed out that many blog posts will be protected by fair comment and qualified privilege. In relation to the former, see also Spiller v Joseph [2010] UKSC 53, in which Lord Walker underlined the importance of the defence being flexible enough to protect passing comments on the internet, at [131].

91 Hammond v D.P.P. [2004] EWHC 69 (Admin) at [11]. However, contrast the position of Auld L.J. in Norwood v D.P.P. [2003] EWHC 1564 (Admin).

92 Connolly v D.P.P. [2007] EWHC 237 (Admin) at [18].

93 The argument is being pursued in the Paul Chambers appeal, relying on dicta from Sedley L.J. in the Queen's Bench Division in Collins v D.P.P. [2005] EWHC 1308 (Admin), which was reversed by the House of Lords.

94 A. Geddis, ‘Free Speech Martyrs or Unreasonable Threats to Social Peace?: ‘Insulting’ Expression and Section 5 of the Public Order Act 1986' [2004] Public Law 853.

95 The Code for Crown Prosecutors (2010).

96 In R v Rogers [2007] UKHL 8, Baroness Hale at [17] stated that any danger that “vulgar abuse” could fall within an aggravated public order offence was unlikely as “the normal criteria for bringing proceedings would not be met”.

97 Dehal v CPS [2005] EWHC 2154 (Admin) at [9]. See also Abdul, note 51 above, at [49].

98 For a recent application of provisions protecting hosting services, see Tamiz v Google Inc [2012] EWHC 449 (QB). On the question of whether a service hosting content is a publisher at common law, compare Tamiz and Davison v Habeeb [2011] EWHC 3031 (QB).

99 For example, Facebook's Community Standards (http://www.facebook.com/communitystandards).

100 For discussion of such concerns in relation to notice and takedown procedures, see L. Edwards, “The Fall and Rise of Intermediary Liability Online” in L. Edwards and C. Waelde (eds.), Law and the Internet (Oxford 2009), 73–76.

101 For a proposal along these lines in the relation to search engines, see Leiter, note 5 above.

102 Pasquale, F., “Rankings, Reductionism and Responsibility” (2006) 54 Clev. St. L. Rev. 115Google Scholar.

103 See Citron, D. and North, H., “Intermediaries and Hate Speech: Fostering Digital Citizenship for our Information Age” (2011) 91 B.U.L. Rev. 1435Google Scholar at1471-1476 on intermediaries taking such an approach voluntarily.

104 See J. Bennett, “Letting artistic merit speak for itself”, The Founder's Dinner, St Anne's College, Oxford, 28 February 2005.

105 On the limits of blocking as a strategy, see Ofcom, “Site Blocking” to reduce online copyright infringement (May 2011). The report led the government to drop site blocking measures in the implementation of the Digital Economy Act 2010, see Department of Culture, Media and Sport, Next steps for implementation of the Digital Economy Act (August 2011). However, blocking injunctions to prevent intellectual property rights are still possible under the Copyright, Designs and Patents Act 1988, see Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch).