That joke isn't funny anymore

When Paul Chambers, frustrated at the closure of Doncaster’s Robin Hood airport, jokingly tweeted that he wanted to blow the airport ‘sky high’ as a consequence, he had no idea of the chain of events he was to set in motion. This seemingly innocuous aside would ultimately lead to an (eventually quashed) criminal conviction, him becoming something of a cause celebre with celebrity supporters such as Stephen Fry accompanying him to court, and his case provoked much debate around the meaning of the word ‘menace’ within the context of online communications.

Beyond the case itself, it also crystallised a number of questions, and concerns, about the parameters of freedom of speech, the possibilities, and problems of social media, and the role of the law. Further, it led in no small part to the instigation by the Director of Public Prosecutions of a consultation on the Interim Guidelines on Prosecuting Cases Involving Communications via Social Media that closed to submissions this week. Time will tell what happens to these Guidelines, and how they ultimately look. I was part of a submission (via our Centre for the Study of Law, Society and Popular Culture at the University of Westminster, and take a bow Susan Collins, Steve Greenfield and Stephanie Roberts) that argued, amongst other things, that the role of the criminal law in policing social media needs to be carefully looked at, and in our view largely resisted. Crucially we argued that there needs to be a clear understanding of the distinctions that exist between communications via social media and from more traditional means, most obviously in terms of the potential reach of communications made via these new modes of transmission.

We also argued that a really difficult aspect of this is that of definition. The guidelines talk of words being ‘grossly offensive, indecent, obscene or false’ but as past examples illustrate, the parameters of such terms are often necessarily elastic and definition of such terms is problematic.

Context is also often an important factor.  Consider the campaign that sprung up some years ago as a reaction to what became the Racial and Religious Hatred Act 2006. Whilst most people have no problem with bigotry being confronted, there are often consequences that go far beyond what’s originally intended. Comedians such as Rowan Atkinson were up in arms because of the potential effect this could have upon freedom of speech. A man acknowledged (by myself) as the greatest living comedian, Mr Stewart Lee, who was no stranger to religious controversy following reaction to his award winning Jerry Springer the Opera, wrote in the Independent on Sunday in 2004 that

"One would like to think that comedy could incite religious hatred. That would be great. It's the duty of comedians to attack religious belief because you test the elastic limit of a thing by probing it, and belief systems based on faith rather than facts need to be tested. This legislation tells us a lot about the Labour government ... It's a government that dismisses facts and prioritises belief."

These sort of examples illustrate some of the problems that can be created by attempts to curtail freedom of speech. However, finally, and perhaps this is key, there has been much discussion on the need to educate users of social media as to their responsibilities, and as part of this, to inculcate some sort of awareness of the protocols, ethics and legal parameters of such use.  Whilst historically journalists were made aware of these sorts of things, with the rise of citizen journalism in many ways we are all journalists now, yet often are not equipped with an understanding of the responsibilities we have. Perhaps rather than relying on a final resort to the vagaries of the criminal law, a more constructive long term response might be more in the way of education and awareness for users of social media.

NB: Since this was originally published on the young lawyer blog, the final guidelines have now been published – in truth they are not very different to the interim ones, and the Smiths sleeve is a reference to the Paul Chambers case and the original title of the piece!