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Tuesday, 9 October 2012

What's the difference between a sick joke and a criminal offence?

When a pie factory exploded in Huddersfield my Twitter timeline, not normally awash with sick humour, caught one particular joke:
"Explosion in Pi Factory, 3.1415927 Dead"
The problem here is that someone was actually killed.  Not only that, but my brother used to work for the butcher who owned the factory, although he didn't know the dead man or the six injured.

Someone died, the joke was sick. So should those who repeated it on social media have been charged under Section 127 of the Communications Act for sending "a message or other matter" which is "grossly offensive or of an indecent, obscene or menacing character"?

Thankfully, to best of my knowledge, the law didn’t see fit to interfere – we can’t go locking up mathematicians with a penchant for paronomasia, clever little buggers!

But yesterday Matthew Woods was sentenced under this law to 3 months in a young offenders' institution for – let’s face it - far worse 'jokes' posted on Facebook in relation to April Jones.

It's not clear at this stage whether the jokes were posted on an appeal or memorial page dedicated to the missing girl, or on his own timeline.

What is clear from multiple reports is that the bulk - if not all - of these offensive 'jokes' were lifted from Sickipedia, a website dedicated to sick jokes.

If the jokes were simply posted on Woods' own timeline it raises the possibility that the people who uploaded the material to Sickipedia in the first place are also guilty of the same offence as, given this was a high profile UK story, it's highly likely that UK users uploaded the original jokes.

A post on Facebook is a limited public disclosure aimed at friends; a post on a public website is aimed at a wider audience - so there are clear grounds for equal treatment.

Just one case and we're already in a legal minefield.

Legal equality is of critical importance.  We can't just pick and choose who we want to prosecute based on whether the suspect "looks like a wrong 'un" or we risk giving the people who make such decisions power to act in a discriminatory manner or work towards political aims.

And to have equality we must have an objective test on whether material is or is not "grossly offensive".  Any joke about a death could be seen as "grossly offensive" to his or her family.  Does that therefore mean the Darwin Awards are now illegal in the UK?

I really do not intend to be flippant in this question on such a sensitive but important subject.

The death of a child is of course a circumstance bringing unimaginable heartbreak but that doesn't mean we should subvert the law so that it is applied differently in high profile cases and that doesn't mean we shouldn't question the wider implications of having such laws.

Looking at recent cases we know criminal charges are likely if you post highly distasteful comments about police murders, that a criminal conviction is possible for disrespectful comments about dead soldiers in a post critical of the role of the UK's armed forces overseas and sick 'jokes' about a child murderer can get you locked up.

To be absolutely clear I am not condoning such behaviour and there is no easy answer to such questions for law makers.

We can't ignore the fact that Matthew Woods' home was besieged by around 50 people after posting the material, indicating the public mood for action.  Similarly there is a report today that a court in Huddersfield is currently under siege by nationalists after it failed to deliver a custodial sentence to Azhar Ahmed for his Facebook comments about dead UK soldiers.
Read more on the difficulties:
1. The free speech thorn is there to stop us living in our cosy little bubbles
2. Freedom of speech: 'freedom from', 'freedom to' and protection of the individual
It's now nine years since Parliament enacted a law that gives some state control over what can and cannot be posted online; we have already embarked on a journey that results in jail time for significant transgressions.

And indeed UK public opinion is most likely in favour of "doing something" to prevent these "vile" abuses of free speech - since public opinion tends to form around black and white positions without considering the subtleties e.g. of enforcing such a law given the vast amount of grey separating black and white.

We're part way down a very slippery slope and in the absence of a change in the law the best we can hope for to prevent the UK's online speech laws affecting democracy is for:
  • prosecutors to establish a clear set of objective rules on how the existing law will be applied; and,
  • that the law is applied uniformly, regardless of the offender (a 19-year-old unemployed man or a high profile comedian) and regardless of the medium (ie a public comment on Facebook is analogous to one on a website such as Sickipedia)

@JamesFirth

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