The issues raised by the Twitter Joke case have been gone over so thoroughly that, as is so often in public debate, only the obvious question remains undiscussed and unanswered: whatever happened to the right to free speech? The Human Rights Act guarantees it. Article 10 states:
‘Everyone 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.’
That this is a new type of free speech case is beyond doubt to my mind.
I’ve an essay in the current issue of Standpoint on how the web is providing the authorities and employers with ineradicable evidence they can take down and use against their targets. Paul Chambers’ case is the best example of how, far from setting people free, the web is trapping them. Chambers planned to fly from the north of England to Northern Ireland to see his new girlfriend when he heard that snow had closed the airport. ‘Crap!’ he tweeted. ‘Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’
His 600 followers who had been listening in to his accounts of his blossoming affair knew it was a joke. A manager at Robin Hood who found the tweet when he searched Twitter for mentions of the airport said it was not a credible threat. So did airport security. So did the police. Everyone could see that this was just a bad joke of the type people make all the time. If Paul had been with his friends in the pub and shouted mock abuse at the TV when the local news came on, no one would have noticed. Because he sent it to his friends on Twitter, however, the Crown Prosecution Service could launch a case that cost Chambers his job as well as his good name. (By the way, as we are in the age of austerity, surely the government should reduce the CPS budget. If it can afford to waste public money on vexatious litigation, it will be able to handle a few sharp cuts.)
Freedom of speech is not an absolute right. There are always restrictions. What distinguishes open from closed societies is that the restrictions are few and are waived if there is a public interest in allowing freedom. The Human Rights Act says that speech can be curtailed 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’.
Chambers had threatened none of the above. He had made a bad joke. Freedom of speech includes the freedom to make bad jokes, to be offensive and to be foolish (as regular readers of the Coffee House comments’ section know.) John Cooper, Chambers’ QC, gave a fine address to the court. He pointed out that just because someone was offensive did not make him a criminal. Would we prosecute Shakespeare for writing ‘let’s kill all the lawyers’? he asked. Everyone except the prosecutors laughed. Article 19 submitted an affidavit which argued, ‘exaggeration and hyberbole are common occurrences online. Making a joke on Twitter shouldn’t result in a criminal conviction’.
But the judges, led by the Lord Chief Justice, were not particularly interested. They kept dismissing arguments about the Human Rights Act. Their concern was with the validity of the original conviction, not with whether the right to free speech meant that Chambers and people like him should never have been prosecuted or convicted in the first place.
Their oversight was not an exception. I spoke to as many lawyers as I could and none could remember a moment when the courts had used the Human Rights Act to expand the freedom to speak, write and argue in Britain. The judges have taken the Act’s defence of the right to privacy and built a vast legal structure on top of it. But the article defending free speech remains ‘underused’ as one lawyer put it to me.
I had several people criticise the argument in my last book that we should move towards the American system in which public figures had few rights to stop criticism or discussions of their private lives. They made serious points, but I could always reply that we needed excessive freedom because we could not trust the judges and the wider legal profession to take free speech seriously. They did not love it or understand its importance. When confronted with a legal obligation to defend it, they found ways to wiggle away.
Nothing I heard at Paul Chambers’ appeal made me change my mind.
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