In one of the most significant cases involving the regulation of Social Media since its birth in the mid 2000s, a Trainee Accountant has lost his appeal against a conviction under Section 127 of the Communications Act 2003 for “sending a message of menacing character over a public electronic communications system” after posting a tweet which threatened to “blow an airport sky high”.
News of the failure of Paul Chambers’ Appeal came on the same day that Conservative MP Gareth Compton was suspended following his arrest for the same offence after posting a tweet suggesting that Journalist Yasmin Alibhai-Brown should be “stoned to death” after her appearance on Radio 5 Live.
Many Social Media commentators and Media Lawyers have been following Paul Chambers’ case very closely. It’s been hugely controversial for a number of reasons and could have serious repercussions for the Twitterati, even if the backlash against Chambers’ conviction is taken into account by the Crown Prosecution Service when similar cases arise.
Earlier this year, Paul Chambers’ travel plans and a planned meeting with another Twitter user were disrupted by heavy snowfall at Robin Hood Airport in Doncaster. Out of frustration, he posted this Tweet:
“Robin Hood airport is closed – You’ve got a week and a bit to get your s**t together, otherwise I’m blowing the airport sky high!!”
The Tweet was intended to be a joke for Chambers’ friends and “followers”. A week later, however, all humour had left the situation when Chambers was arrested at his office and his laptop, PC and iPhone confiscated by South Yorkshire Police. During the incident, which Chambers thought related to an accident involving a member of his family, he was shown a printout of his Twitter feed.
Chambers was questioned for over seven hours on suspicion of being a security threat, bailed and later charged. The incident led to his suspension from work and a lifetime ban from Robin Hood Airport.
Chambers was originally arrested under Section 51(2) of the Criminal Law Act 1977 for offences relating to making a hoax bomb threat. Securing a conviction for this offence would have been an uphill struggle given that the Prosecution would need to show that Chambers intended the Tweet to “induce in any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever”.
The chances are that many of Chambers’ followers saw the Tweet for what it was intended to be – a joke. However, even though the arrest was arguably heavy handed, the timing of the Tweet was perhaps even worse given the various states of high alert under which UK Airports have operated since 9/11.
The situation changed when Chambers was eventually charged, not under the 1977 Act, but under Section 127(1) of the Communications Act 2003 – “for sending 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”, an offence which can carry a prison sentence of six months.
On 10 May 2010, Chambers was convicted by Doncaster Magistrates’ Court, leading to a fine of around £400 and an award in costs of around £600. He appealed, only to have his case dismissed on every count by Judge Jacqueline Davies on 11 November.
The conviction was hugely controversial, not least because the 2003 Act was based on laws originally intended to deal with threatening or menacing telephone messages. Although there have been plenty of cases under which the 2003 act has been applied for the right reasons, such as DPP v Collins in 2006 (which dealt with racist answer machine messages left for an MP) and R v Brent in 2008 (which dealt with a Welsh blogger who posted a message to a Police Officer threatening his newborn child), many are asking whether or not this case has been not only a waste of tax payers’ money but the first sign of an alarming new approach to social media content where old law which can be applied to a wide range of conduct is being used in the new world where bringing a more serious case would lead to a more difficult prosecution – the 1977 Act requires a specific threat and strong evidence of intent, whereas the 2003 Act does not.
Chambers’ message was not posted to Twitter’s public timeline and could have only have been initially seen by his 600 or so “followers” at the time. For anyone else to see it, one of those followers would have had to re-post (or retweet) it so that it would then show up on Twitter’s public timeline.
Even if the tweet were available generally to Twitter users, Chambers’ defence team made the very sensible point that as of May 2010, around 600 messages per second were “tweeted” on the platform. The odds of his ‘threat’ actually being seen by an appreciable number of people were, to say the least, small. The original district judge in Paul Chambers’ case chose not to dwell on this point and having decided that eh tweet was at least “menacing”, convicted and fined Chambers.
The Appeal Judge was similarly unimpressed, refusing requests to cut Chambers’ sentence to an absolute or conditional discharge and referring to his denial of appreciating the implications of his Tweet “incredible”. Going on to find that Chambers had been an “unimpressive witness”, Judge Davies told the court that: “Anyone in this country in the present climate of terrorist threats, especially at airports, could not be unaware of the possible consequences.”
The original tweet was found to be “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.”
The risk following this case is that any similar message to Chambers’ on Twitter or any other Social Media platform, whether intended to be taken seriously or not, could now very easily fall under the 2003 Act’s definition of “menacing”. Any number of Social Media users and potentially the employers of Social Media users who tweet in their name could now face prosecution.
A day before Chambers’ appeal hearing, MP Gareth Compton was arrested for the same section 127 offence, made worse by the fact that his comments were seen as racially aggravated. This is a clear indication that the Chambers case is very likely to be the start of a series of similar cases, rather than a one-off.
The Communications Act 2003 was drafted to deal with new technological threats not covered by existing legislation. Social Media was a twinkle in the eye of the web when the 2003 Act was drafted, and this is just another example of old law being used as a “one size fits all” solution to a new environment without boundaries and where any opinion or content can be shared with the world as soon as it is thought of. Ultimately, the CPS will always need to decide whether or not a prosecution is in the public interest – in Compton’s case it is much easier to argue that point.
The Chambers conviction goes against everything that Social Media stands for as far as the free exchange of opinion and content is concerned. However, the 2003 Act is, apparently here to stay and although Stephen Fry has famously offered to pay Paul Chambers’ fine and legal costs, the genie of criminal risk in the Social Media world is now very much out of the bottle. Both individual and even corporate members of the Twitterati can’t afford to ignore it.
The moral of the story? Think before you tweet and remember that offline rules will still apply to your online life. If you don’t believe me, ask Paul Chambers.