It’s time to change the bad law used to prosecute Count Dankula

The prosecution of the online controversialist and comedian Count Dankula was a great mistake. Earlier this week he was convicted by the Airdrie Sheriff Court of sending a grossly offensive message by a public telecommunications network.

The Count, otherwise known as Markus Meechan, is a man of whom I had never heard, and nor, I suspect had you, until he made a video of his girlfriend’s pug giving a Nazi salute in response to him saying things like “Sieg Heil!” and “Gas the Jews!” Although showing the video must, I suppose, be regarded as a criminal act in Scotland, it is easily available online. Indeed, one of the predictable ironies of the case is that as a result of the prosecution it will have been viewed by millions more people than would otherwise ever have heard of it.

As a demonstration of dog training it is moderately impressive; as a comedy sketch it is embarrassingly unfunny, although of course comedy is a very personal thing. Some people, for example like Mrs Brown’s Boys, or that ghastly ratty comedian who gets paid millions through a Cayman Islands shell company.

The prosecutor did not find it funny. He described the video as:

an odious criminal act that was dressed up to look like a joke.”

Mr Meechan explains on the video how his odious criminal act came about. He said that his girlfriend was:

always ranting and raving about how cute and adorable her wee dog is, so I thought I would try to turn him into the least cutest thing that I could think of which is a Nazi.”

Sheriff O’Carroll who heard the case seems to have accepted the obvious point that the video was intended as a joke, even though he himself does not seem to have laughed, but he sternly concluded:

“the description of the video as humorous is no magic wand.”

He did not accept, as Mr Meechan argued, that the purpose of making the video was to annoy his girlfriend (though even if it had been I can’t see how that would be a defence). Instead, he decided, Mr Meechan had made the video in order to drive traffic to other material he had on You Tube. The Sheriff said that he had taken into account the right to freedom of expression, but that right, he said, “comes with a responsibility.” The video, in his view was “grossly offensive,” Meechan would have known that it would be found grossly offensive by many Jewish people, and he was thus guilty of the offence.

Normally speaking I would be reluctant to comment on criminal law of Scotland. Substantively, procedurally and evidentially it is quite different from English law and I profess to no expertise in the subject at all. As it happens, however, S.127 of the Communications Act 2003 (under which Mr Meechan was prosecuted) applies to England and Scotland, and it is reasonable to assume that the courts would interpret it in the same way in both England and Scotland, particularly as there have been decisions on the correct interpretation of the section from the highest court in both jurisdictions, the Supreme Court and its predecessor the House of Lords.

The relevant part reads as follows:

127 Improper use of public electronic communications network

(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;

One or two points need to be noted.

First of all, the crime is only committed when someone sends a “grossly offensive” message or other matter “by means of a public electronic communications network.” Being grossly offensive is not a crime if done privately, nor, indeed if it is done on a stage.

Secondly, the offence is not a new one. Although it is currently to be found in the Communications Act 2003, it has its origins in the almost identically worded s.10 (2)(a) of the Post Office (Amendment) Act 1935. The drafters of the 1935 statute had telephone and telegram communications in mind. As Lord Templemore put it in the House of Lords:

I come now to what is probably the most important clause of the whole Bill … [it] is designed to give the Post Office staff protection in cases where, for example, people have indulged in improper or obscene language over the telephone to female telephonists. During the debate on the Second Reading in the House of Commons it was suggested that the public should also be protected and subsection (2) has been designed accordingly. In its three paragraphs protection is afforded not only against the improper use of the telephone but also the telegram. Cases have occurred where members of the public have received over the telephone messages of an indecent character, and even of a menacing character. There have also been instances where telegrams have been sent to persons intimating that somebody is seriously ill and when inquiries have been made by anxious friends or relatives the message has been found to be a complete hoax. There have also been cases of annoyance caused by persons who persistently use the telephone to make calls without reasonable cause—usually late at night. This subsection will give the Postmaster-General the necessary power to protect the public.”

We have come a long way from a statute aimed at criminalising hoax telegrams and offensive remarks to female telephonists, to one that is now used in an attempt to prevent offensive material appearing on You Tube. S.127 of the Communications Act has become one of the principal means by which the internet is policed. It has done so, though, with very little debate about whether it is appropriately worded to deal with modern issues. It is one thing to protect individuals from grossly offensive personal telephone calls; it is quite another to protect groups of people from what are in effect public performances.

What of the case itself?

No transcript has been produced of the judgment but it is easy to understand the Sheriff O’Carroll’s apparent reasoning. The offence, according to the leading case of Collins [2006] UKHL 40 has two elements:

(a) whether the “message (a slightly odd word to use in the context of a 3 minute video) is couched in terms liable to cause gross offence to those to whom it relates.” Gross offence is to be judged by “reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.”

(b) The person who sends the message must “either intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so.”

If joking about gassing the Jews is not at least capable of being “grossly offensive” to some people it is hard to think of anything that would be. So the first part of the crime – the actus reus – is relatively easily established, although of course much is left to the sensibilities of the particular judge.

What of the second part, the mens rea, or mental element of the crime? It may well be that Mr Meechan did not intend to offend Jewish people, but the offence does not require any such intention. It is enough if a defendant is aware that people might take offence. You would have to be remarkably dense not to realise that they might do so.

The video was not an incitement to gas the Jews. It was not – with respect to the Sheriff – anti-semitic. Indeed, as Mr Meechan explained, its whole premise was that the pug had been trained to behave in the “least cutest” way possible. It is very difficult to analyse humour, and even more so of humour that you don’t yourself get, but the mockery was partly of pug-owners who see their somewhat ridiculous looking dogs as cute, and partly of Nazis. Despite that it was still tasteless and still offensive. Perhaps the Sheriff was wrong to ignore the fact that it was intended humorously; all things being equal a joke in poor taste is probably less offensive than a similar message delivered without humour. Context is very important. On the other hand he was right to say that humour alone cannot be a “magic wand” that excuses anything.

What this boils down to is that criticism of the Sheriff misses the point. Other judges might have reached a different conclusion, perhaps they will if Mr Meechan appeals, but given the relatively low bar set by the law his finding of guilt was probably justified.

But the fact that the Sheriff may have applied the law correctly is anything but reassuring. It is quite the opposite. It means that the problem is with the law, not with the individual Sheriff. It means that more people will be encouraged to complain that they have been offended by material posted online. It means the Scottish Police will have more of their time taken up by investigating such complaints, it means that Procurators Fiscal will be encouraged to prosecute more of them. It is indeed likely to restrict the freedom to speak freely online.

We should not over-state the case’s importance. For one thing, the English and Welsh Crown Prosecution Service has very sensible written guidelines on cases involving communications on social media that mean such a prosecution would have been much less likely to have been brought South of the border. For example:

Prosecutors should only proceed with cases under … section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than:

  • Offensive, shocking or disturbing; or
  • Satirical, iconoclastic or rude comment; or
  • The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.”

Pending any changes in the law the Airdrie Procurator Fiscal might be well advised to study these guidelines.

And the effects on free speech, even on Airdrieonians, can be exaggerated. You are still free to make grossly offensive remarks or jokes without fear of prosecution as long as you do not use a “public telecommunications system” to make them. Stand up comedians and theatre owners are still free to offend anyone they wish.

And why should they not do so? Causing offence – and on occasion even gross offence – can be perfectly justifiable. There is a great deal of difference between criminalising the giving of offence, and criminalising threatening behaviour or the incitement of hatred. Arguments that would once have taken place in smoky pubs now take place online, and are potentially visible to millions, especially if anyone wants to go looking for them. Taking offence at perceived slights, or at what might be considered outrageous expressions of opinion, or horribly tasteless jokes is something that happens literally all the time. Yet there seems no principled reason why an offensive joke that would be lawful in a theatre or cinema should suddenly become unlawful because it is on the internet. It is simply an accident of history.

One potent source of offence taking is, of course, religion. Even I, as a lapsed and almost entirely secular member of the Church of England, cringe when – as occasionally happens – I hear people mocking the religion in which I grew up. So I can well understand how devout believers could be deeply, or “grossly” offended by mockery of the central tenets of Christianity. And of course what goes for devout Christians also goes for devout members of other religions, not least Islam.

Cartoons mocking Mohammed have caused enormous offence, so great that fatwas have been issued to demand death for those publishing them, and of course the Charlie Hebdo terrorists murdered to avenge them. Very few Muslims would be tempted to murder, but unquestionably many peaceful and law-abiding ones would still be deeply offended by such cartoons. Anyone placing them online would be bound to realise that gross offence would be taken. Would they then be guilty of an offence under S.127? The answer is yes, unless, perhaps, they could argue that taking offence at Mohammed-mocking cartoons was not “reasonably enlightened by contemporary standards?” That would mean the law discriminating between the sensibilities of devout Muslims (whose real and genuine feelings of offence would be ignored) and those of others whose taking of offence was deemed sufficiently “enlightened.” Such distinctions are unpredictable, subjective and indefensible in a secular society. It is a law that could hardly have been designed better if its purpose was to generate grievances between different sections of society.

In 2006 Parliament debated the issue of amending the Public Order Act 1986 to criminalise acts tending to stir up religious hatred. The Government proposed to make it an offence to use “threatening, abusive or insulting behaviour with intent to stir up religious hatred, or being reckless as to whether such hatred would be stirred up.” It was defeated. The words “abusive or insulting” and “reckless” were all removed, largely because of the fear that criminalising the giving of insults would stifle free speech. The offence under S.29B of the Public Order Act now reads:

  1. A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.

In addition a specific defence was added as S.29J:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”

So we now have this strange arrangement: on the one hand you are specifically permitted to “ridicule, insult or abuse particular religions.” On the other, if you do so on a public electronic communications system – on the telephone or online, or even (if such things still exist) by telegram – you are liable to be prosecuted under S.127 for sending a “grossly offensive message.” If there is a rationale hidden in there I certainly cannot see it.

Mr Meechan was supported at court by the unappealing alliance of Tommy Robinson and Ricky Gervais. His supporters also include Breitbart News, James Delingpole and the rentaquote Tory MP Philip Davies. They are a motley and in some cases a rather unsavoury bunch, but on this issue they are right. The very savoury Adam Wagner, a leading human rights barrister, has also explained in very clear terms why he thinks the conviction is an indefensible restriction on freedom of speech.

It is time for Parliament to look again at S.127. It is wholly unfit for purpose.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

41 thoughts on “It’s time to change the bad law used to prosecute Count Dankula”

  1. The defence of something like the following might have been better.

    “I was showing the world that even the cutest of us, given the right circumstances and training, manipulation and reward may be tempted to turn from niceness to following ideas that are horrific. It applies as much today as it did in the past. We should all take care.”

  2. Thanks for this Matthew. I think I should have found this comedian guilty by association with those who supported him! But you are quite right: time for a rethink. Are there such creatures as female telephonists in 2018?

    1. I parted company with Matthew on the use of the word “unsavoury” etc. What I find unsavoury are double standards. Why is alright for the Quilliam Foundation to say something but not Tommy Robinson? The very same thing! Quilliam people get invited on to the air and Tommy Robinson gets banned from Twitter. I thought lawyers put away their prejudices and bigotry in making these sort of judgements, going on the facts, not the reputations of the people concerned. Justice is supposed to be blind or always used to be. Otherwise, a very good piece.

  3. Does this mean that Vladimir Putin could use the S.127 of the Communications Act 2003, to prosecute Boris Johnson for comparing him to Adolf Hitler in the press?

    1. you try to launch a private prosecution in the UK though and the pigyobs lie in wait for you at the hearing, abduct u before it even takes places and off to be chemically labotomised in the mental prison ghoulags in this cuntry…. 🙁 doubt they wd dare do that to Putin though…..but different rules apply to different people it seems….john cleese still walking free far as i know!

  4. “The drafters of the 1935 statute had telephone and telegram communications in mind.”

    And surely the protection of operators who would be forced to listen to, or see, the offensive words.

    Remember we are not talking about people ringing the operator today and directly abusing them, their then job was to listen in to what was being said when a remote phone connected to their terminal went live and physically make the connections required with plugs and cables.

    Similarly the sending telegraph operator would have to read and code out the requested telegram, and the receiving one would have to decode and type it out.

    As for the public, receiving a telegram, or even a phone call, in the 30s (you might have been dragged out of bed with a message to rush up to the doctor’s house which was the only one with a phone in the area) wasn’t akin to receiving a mass text offering help with PPI claims. You were effectively “forced” to take and listen to, or read, what you expected to be a very important, perhaps life or death, personal message.

    Completely different from someone not just choosing to open and play a You Tube video, but to watch it to the end (and maybe replay it a few times to make sure you haven’t missed anything offensive!)!

  5. I’m hopelessly confused trying to make sense of the law here. You point out that, say, Frankie Boyle could be as grossly offensive as he wanted on a theatre stage. But what if that stage performance is broadcast on iPlayer? Does it then become criminal because it was on the internet? Could a recording of the performance sold through iTunes be considered a “public electronic communications network”? What about a DVD sold on the HMV website, or advertised on Twitter?

      1. If it can apply to iTunes that would mean the Netflix comedy specials by Jimmy Carr, Ricky Gervais etc would likely be ‘Grossly Offensive’ according to S.127 of the Communications Act 2003.

      2. Isn’t the issue that iPlayer is counted as “Broardcast” so that may apply to itunes, netflix etc. So what is created is one rule for rich corporations and those they choose and another for the plebs of YouTube. The issue must be that 1-to-1 comms stay inside the old rules and any 1-to-many falls under “broardcasts” and the issue goes away.

        Personally I’ed just scrap offence/insult based stuff but a 1-to-many change would be a useful additional clarification.

  6. What’s the difference between “reasonably enlightened contemporary standards” and “perfectionist contemporary standards”? Google isn’t helping me out much on this!

  7. Nowhere do you make any reference to the Human Rights Act 1998, section 3(1) viz;
    “Interpretation of legislation.
    (1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
    nor do you refer to Schedule 1 of the same 1998 Act, which setting out the Convention rights provides;
    “Article 10
    Freedom of expression
    1Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
    2The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    For the Sheriff to be correct in his interpretation of the 2003 Act, it has to be;
    “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

    Context is everything. This prosecution also raises a ‘compatibility issue’ and a ‘devolution issue’ within the meaning of the Scotland Act 1998, as amended. As an English lawyer, it is unsurprising that you would not be aware of this but it remains the case. In saying so I speak as an Advocate of over 30 years experience of practice at the Scottish Bar.

    1. Problem with article 10(2) is it basically negates 10 (1), ie The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary

      So freedom of speech is subject to the caveats in 10 (2) – therefore in practice it is impotent. Section 127 needs to be repealed so that ‘prescribed by law’ cannot defeat our freedom of speech.

      1. Article 10(2) does not negate art.10(1), in anyway shape or form. It qualifies it. The freedom of expression is not an absolute right. It is a qualified one. I’ll give you the benefit of the doubt and presume that I don’t need to explain the difference between negation and qualification to you.

        Your claim therefore that article 10(1) is impotent betrays a profound ignorance on this area of law on your part. There is a litany of jurisprudence where the right under article 10 has been upheld, even as recently as 2017 (see:

    2. reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.

      The court in collins [2006] UKHL would have considered the Human rights act and how to read the two consistently. The House of lords probably came up with the above standard by looking at the Human Rights Act which is probably why the Presding Judge didn’t have directly look at the Human Rights Act as all that analysis had already been done by the House of Lords.

  8. What about the black councillor who was dragged into court and fined for calling another councillor a coconut? The people who run our criminal justice system are sadists and retards in equal measure, not to mention liars.

  9. “… grossly offensive or of an indecent, obscene or menacing character” seems to be the fundamental problem… as like humour, it is subjective…..possible to prosecute anybody under that for doing or saying just about anything…? as it all comes down to (supposed) opinion….can’t find out if a jury was involved though, but u never hear the concept of jury nullification in court rooms, ever, never mind MSM…. when was right to jury trial actually abolished? i never could find that one either…

  10. “If there is a rationale hidden in there I certainly cannot see it.”

    Allow me to explain the hidden rationale for S.127 of the Communications Act 2003 being so oppressive, whilst, on the face of it, S.29B of the Public Order Act is more liberal.

    There have been no end of incidents in recent years in which the police have arrested those who have spoken in the street, and locked them up in uncomfortable police cells for hours on end. One street preacher, for example, recently was detained for 20 hours in this manner, and then simply released without charge or trial.

    This nowadays routine extra-judicial punishment, is a powerful enough deterrent to expressing dissident, minority beliefs in the public square, without the need for the thought police ever to bring a single prosecution. The extra-judicial punishment is not impeded by the
    disadvantage of a fair law under S.29, under which the thought police have seldom been able to secure a conviction in a magistrates court of one of those they had briefly imprisoned, to teach them a lesson. At least, not a conviction that wasn’t subsequently overturned in the Crown Court.

    On the other hand, when people express ideas which the state wishes to suppress on their blogs or on social media, i.e. in the privacy of their own homes, but sat in front of a computer that places their subversive words onto the World Wide Web for all to read, the thought police are nervous of simply breaking down their front doors with a warrant and arresting them at home, whenever a thought police officer reads what they have written and disapproves. Consequently, in these circumstances, a different method of intimidating dissidents into silence is needed. That different method of extra-judicial punishment is what the draconian S.127 provides. It enables the authorities to make sure that dissidents suffer, without attracting the attention of the neighbours, even if, when they get their day in court, the dissidents are usually found not guilty.

    That’s the hidden rationale for the disparity of approach that you find so puzzling.

    If you are attempted to disbelieve the thought police exists, and that they conduct extra-judicial punishment of those whose beliefs they disapprove of, then I suggest you read about A v Cornwall, on my blog.

    1. If someone is arrested by the police when there is no proper legal basis for this, locked up for 20 hours and then released without charge, they would have grounds to bring a civil claim against the police for false imprisonment. They could also obtain an injunction preventing the police from acting in a similar way in future. Many solicitors’ firms bring such claims (I used to work for one) and legal aid is available.

      I would suggest that if there have been “no end of such incidents” as you suggest, then the victims should do something about it.

  11. Thanks for addressing this issue; most people have no idea of the idiosyncrasies of the law and those with authority to apply it until they have done something then interpreted as potentially illegal. I’m sure the prosecuting authorities in Scotland were taking a gamble that paid off here.

    One thing tho; you clearly don’t like Tommy Robinson, Rick Gervais or any others who supported the convicted man. That you find them distasteful, even if only on this point rather than generally, seems no reason to derogate them with terms such as their being “motley.” Semantics are important. Maybe not everything they stand up for is palatable to everybody but it makes perfect sense to others. Some of the points they bring up are quite true and pertinent, but shied away from and not dealt with for politically correct reasons. But man, aren’t some willing to go for those with the courage to speak out on sensitive issues, rather than cogently engage with the matters they try to have addressed? You could have used the term “diverse” rather than “motley.”

  12. That’s a really interesting analysis, but there’s something I think that is missing from it.

    The comedian has choices available when making the video. The joke works perfectly well with a trigger for the dog’s trick as “Heil Hitler”. By selecting “Gas the Jews” the joke changes – the historical reference becomes hate speech.

    Hitler is an historical character, and heil hitler and a raised arm are a convenient trope and a shorthand for Naziism. So the cute dog is referencing evil.

    “Gas the jews” isn’t a reference to the past, it’s something that simply shouldn’t be said in the 21st century.

    By making that choice, that part of the message became both offensive and indefensible. The comparisons with Ricky Gervais and Frankie Boyle are red herrings – neither of them would include that material, and if they did, they should probably be prosecuted.

    The technical issues with the outdated and unhelpful wording of the legislation are excellent points, but there’s a line that was crossed. Fears that the line, having been established in case law, might then move is a sensible concern, but it doesn’t mean that nothing can be offensive.

    1. I quite agree that a line has been crossed with “Gas the Jews.” It is offensive, even grossly offensive. I don’t agree that that should be a crime.

      1. Now, you mention it, as an old punk, I am reminded of the Sex Pistols song “Belsen was a Gas”. The opening verse of which goes

        “Belsen was a gas, I heard the other day
        In the open graves where the Jews all lay
        “Life is fun and I wish you were here”
        They wrote on postcards to those held dear”

        As well as being historically inaccurate (Belsen was not an extermination camp), this is grossly offensive in the same way as the Dankula material. Videos of the song are freely available on Youtube. A clear S127 offence (at least in Scotland), one would have thought.

        Interestingly, the punk movement in 76-77 was very fond of Nazi imagery. From Sid Vicious wearing swastika T shirts to a pre Prince Charming Adam Ant singing about his lover being “so Nazi”. Obviously that was all about the children of the WWII generation shocking their parents, but given that this was a time when many middle aged men had fought in the war, people seemed generally less bothered about that than insulting the queen and saying “fuck” on TV.

        That’s a one for a Ph.D thesis…

        1. The Nazis were laughed at all through the war and immediately afterwards. People took off their salutes and their marching – there is even a cinefilm of the Royal Family doing it. That was all quite innocent and inoffensive, and helped to get us through the war. Then, in the late sixties, people who hadn’t been involved in the war started up a darker humour, an obsession, a fascination, even. This was horrid. A whole industry seemed to grow up around it. Then came a third phase, which we are still in, when it became a way of denouncing people and ending their careers. Any mention, however historical, of the Nazis or Hitler, could finish you. It would be twisted and misrepresented by the faux outraged as it was when Boris wrote about the unification of Europe, first under the Romans, then attempted by Charlemagne, then by Napoleon, and…The Forbidden Name, and finally by the EU.

      2. Did you agree with the judgement in Bristol which sent a man to prison for leaving bacon sandwiches outside a mosque? He was 35 and died in prison in unexplained circumstances, or if they were explained, they were hushed up.

        There have been many assaults in that city where the assailants, despite inflicting grievous bodily harm, did not get prison sentences.

  13. Perhaps this matter is an extension of Godwin’s Law, in that the longer an OCP’s (online content provider) career continues with no real success, the more likely they are to construct a joke about the Holocaust.

    This is not the first time someone has risked or engineered a brush with the law in order to get noticed.

    It is also not that original:

    I do not think he should have been prosecuted, maybe ‘words of advice’ for a first ‘offence’?

    1. As my teachers used to say: “It’s not funny & it’s not clever.” But freedom of speech is for plonkers, just as much as for Oscar Wildes & Stephen Frys (Fries?).

  14. When implementing some piece of legislation that will further infringe upon citizens’ privacy, governments are often apt to argue that legislation isn’t keeping pace with technological developments. Yet the technological developments are so far-reaching, and have effected such a paradigm shift in how we live, work and interact, that the current approach (nationally, internationally) seems patchy, with the inconsistencies you highlight, Matthew, giving legislation the feel of a provisional workaround rather than a coherent, well-considered, permanent solution.

  15. Dear Mr Scott,

    Could you not please for once write something that I disagree with? I am getting really fed up of agreeing with everything you say. This blog is in sore need of mistakes, unwarranted assumptions and sloppy reasoning.

    Kind regards,

    A colleague.

  16. I agree Matthew, it is time to look again at S.127. Most humour involves a victim in some form or other.

  17. Thanks for the illuminating opinion ! It does appear that he was in fact, guilty. But then you also bring up that this law was written before the Internet. It seems the intent of the law was to prevent directed communication of grossly offensive material. But this is not direct communication and seems to be caught up in this simply because it’s electronic communication? IANAL of course, but you do seem to make a case for re-evaluating the law as electronic communication has expanded far beyond the original intent of the law.

  18. I don’t understand how publishing a Youtube video is “sending a message”. I can understand how sharing one would be – the sharer has decided a target(s) to share it with and may have decided to cause the target(s) offence.

    Publishing a Youtube video, seem like publishing a book – in this case one titled “M8 Yer Dugs a nazi”. Surely someone chooses to view the published work and has the title to guide them – it’s not a message forced on the viewer. I can’t see how it is the same thing at all.

    If you have to go out of your way to see something that offends you and it is not delivered to you then it is not a message imho.

    As such I don’t see how this flawed law applies to the defendant – as worded it probably applies to everyone who has tweeted it, emailed links or shared them otherwise, but not to the publisher.

    1. The first example here (‘sharer has decided a target […] to cause the target offence’) is closer to an instance of malicious communication.

      The second example raises the question of whether something has to offend someone to be offensive.*

      It might be instructive to compare with libel, where the libellous statement is similarly not forced on someone, but is encountered by individuals voluntarily reading the relevant publication (or letter, etc.). Granted, the libellous statement will probably be contained in a publication that is not exclusively dedicated to the libellous statements and does not bear a title to match, so the reader would encounter it unintentionally. But does defamation law require that the libellous statements be believed/internalized in order for the statement(s) to be considered genuinely libellous? There is now a requirement of significant harm to reputation, so an adverse effect is required. For example, if someone writes in a Daily Mail column that Gok Wan is only pretending to be gay so he can lull women into a false sense of security and then sexually assault them, and context suggests this is probably intended to be tongue-in-cheek, would that be libellous? Does it matter if no right-thinking individual would believe it to be true? Regarding your last point, individuals who retweet, reprint or otherwise disseminate defamatory statements can also be sued for defamation, as far as I know.

      Besides, some people choose to read or view things they won’t like precisely because they’re already offended as soon as they read the title and are reading/viewing solely to confirm their feelings. A kind of ‘Seriously? Is he really going to say what I think he is?’ In a clickbait world, is it solely the responsibility of the baited party to avoid taking the bait?

      *And, conversely, whether something that offends is necessarily offensive. I
      recall a large number of Christians trying to sue the comedian Stewart Lee for blasphemy under some antiquated law, and the judge threw out the case on the grounds that the law ‘shouldn’t be applicable in contemporary society’ (well, words to that effect, but more legally rigorous I’m sure).

  19. I thought the Dankula case was bad – then I saw this 19 year old girl receive a conviction for having rap lyrics in her Instagram biol that use the ‘n word’.

    This music is available on spotify. Is someone committing a crime if I download it? Are we to start banning music, or is it ok to listen so long as you do not write the words down? I wonder if it is criminal to use this language if you are part of the demographic to whom it is offensive, or is it completely subjective depending on who sent the message?

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