Bernard Hurley did a very informative comment about the law under which Azhar Ahmed was found guilty of “posting an offensive Facebook message.” It’s too informative to hide in comments so here it is.
Ahmed was prosecuted under clause 127(1)(a) of the Communications Act 2003. The purpose of the act is to define the rôle of OFCOM and to regulate such things a local radio and indeed any services running over publicly funded or partially publicly funded electronic networks. Section 127 is buried in the middle of it and reads:
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; or (b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false, (b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. (4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
As far as I can tell, the intent of the legislation was to stop nuisance calls, but, as can be seen, it is very vague. The judgement is only in a magistrate’s court; personally I think it should be appealed. I think, Ophelia, you have put your finger on two legal problems. Which are:
(A) What precisely is a message in the context of services like Facebook?
(B) What makes a message grossly offensive?
The second of these is dealt by the Law Lords decision in DPP vs Collins http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060719/collin.pdf In this case Collins had sent repeated telephone messages to his MP in which he called immigrants and asylum seekers “Wogs”, “Pakis”, “Black bastards”, and “Niggers”. One question at issue were whether, in the given context, this was grossly offensive or merely offensive. The context includes the fact that the actual recipient of the message was likely a secretary or an intern and that Collins did not know or care whether this person would be offended.
The Law Lords found for the DPP (i.e. the messages were grossly offensive) however the criteria they used look like a legal minefield to me:
“Usages and sensitivities may change over time … there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. “The test is whether a message is couched in terms liable to cause gross offence to whom it relates.”
As to (A) it seems that a message has to have a recipient or group of recipients. I’m not sure what the distinction is as regards Internet communications. Is there a distinction between a blog post and a comment on the blog? Is there a distinction between posting something on your status and posting the same thing on someone else’s timeline? I’m not sure what Ahmed did and why it was considered to be a message.
However there is another interesting part of DPP vs Collins. It is made clear that the aim of this particular offence is to prevent a service provided and funded by the public, for the benefit of the public, for the transmission of communications from being used in a way that contravenes certain basic standards. In the UK most of the land line and internet backbone is publicly funded and in practice it is difficult to avoid using them. However it is clear that the law does not apply to a companies private network, it it does not use these services. It would presumably not apply to a message sent over a completely privately owned mobile phone network either.