Policing, protest and popular culture

[This originally appeared, without  hyperlinks, on the Young Lawyer blog]

April was marked by the death of former Prime Minister Margaret Thatcher, and if ever an event divided opinion, this was surely it. Reconciling the death of an old lady and the acts of an administration under her watch in the 1970s and 1980s was a difficult one. From both sides of the political spectrum came eulogies and attacks, debates about the cost and nature of her funeral, the extent of her legacy and her impact - indeed the issue came to dominate so much that some argued that surely ‘Thatcheration point’ had been reached.

In terms of popular culture, one contentious response to Thatcher’s death was the campaign to get ‘Ding Dong the Witch is Dead’ to number one in the charts. Notwithstanding it stalling at number two, itself an echo of The Sex Pistols’ God Save the Queen being kept off the top spot during the Silver Jubilee, and the fact that there were many far better protest songs (Robert Wyatt’s magnificent version of Shipbuilding perhaps, or even the mighty Pete Wylie’s own take on what would happen when she died)*, it raised issues around the futility of  banning items of popular culture. Whatever the merits of the campaign and the choice of song itself, the rather limp response by the media to it, in terms of trying to police popular protest, spoke volumes of the difficulty in trying to censor or stop such activity, especially in an age when swift and widespread dissemination is easily facilitated.

Outside of this very particular protest however, the issue got me thinking about the policing of protest more generally. I touched on protest briefly, and somewhat obliquely, in my very first blog, when I mentioned Peter Hain and the Stop the Seventy Tour Campaign, and the role the various sport related protests had in removing the apartheid regime in South Africa.

Before the funeral of Margaret Thatcher, there was much discussion about whether there were going to be actual protests during the funeral itself and whether any such protest could be legally curtailed. There are of course a number of legislative provisions that could potentially impact on the right to protest, including the Public Order Act 1986 amongst others, but it is important to appreciate that as a counterweight to provisions that regulate protest are corollary powers under the European Convention of Human Rights that give the right to freedom of assembly and freedom of expression. Of course, the relationship between the right to protest and the right to regulate it is a difficult one to balance, but balance it is what the courts must do, and is what the police must have in mind when making decisions as to how a specific event should be policed, something that has proved problematic in recent years when the Metropolitan Police in particular have resorted to tactics such as kettling and a somewhat complicated flow chart has been drawn up to help constabularies when deliberating upon their approaches. In the event there were very few protests at the event and the day passed off peacefully and without major incident, but it was interesting to see the issue of the parameters of peaceful protest raised again, as the extent and nature of these powers is likely to carry on being problematic.

*I should have also mentioned in the original posting of this, but time constraints did not allow me, that Darren Hayman also wrote a song about this, including the Ding-Dong refrain, a number of years ago – an unofficial (I think) video here and solo material from Darren and also back catalogue of Hefner can be purchased here. He’s one of our most original artists and his work on the English Civil War, including his new album Bugbears, is well worth seeking out.

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!