by Chauncey Tinker – 4 Mar 2020
In Part 2 I set out my first campaign objective, which is to have the word “hatred” removed from our laws. In this post I will set out my next campaign objective, which is to have the word “offensive” removed from our laws.
An article about the recent Harry Miller court case, from the Telegraph:
‘Right to be offended’ does not exist, judge says as court hears police record hate incidents even if there is no evidence
The words of the judge as quoted in the above article:
“We live in a pluralistic society where none of us have a right to be offended by something that they hear.
If you think carefully about that statement it is actually ridiculous, because of course we can be offended as much as we like, the question is what does the law prohibit, but I think we can surmise that the judge in fact simply meant to say that the law does not PROTECT us from being offended. Much though we might wish it to be otherwise however, currently the law does in fact protect people from merely being “offended” by words in online communications, thanks to the Communications Act of 2003 which was introduced by Tony Blair’s government.
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.
I don’t know if the judge is unaware of the above law, or whether he is simply as confused by the current laws that restrict our freedom of speech as many other people are. If even learned High Court judges are as confused as this remark seems to suggest, then the case for urgent reform to simplify the laws restricting our speech is made even stronger by their confusion. Although technically the communication has to be deemed “grossly” offensive, of course both the word “grossly” and the word “offensive” are subjective, and so what is grossly offensive to one person may be merely offensive to another, and not offensive at all to yet another person. Since the Communications Act 2003 applies to electronic communications, this law directly applies to the social media comments made by Harry Miller in this case.
The question then becomes, who is to decide what is offensive and what is not? The judge decided that Harry Miller had not broken the law, but another judge might just as easily have come to an entirely different conclusion, because the phrase “grossly offensive” is entirely subjective.
The judge was in fact disagreeing with the current law in his above quoted comment. Much though I agree with the judge’s sentiments on the subject of freedom of expression, and much though I deplore the original judgement that was made against Harry Miller, unfortunately the fact remains that the law does say what it says. We are living in a country where we do NOT have the right to offend others. Simply applauding the ruling will not change the law, the legislation needs to be amended by the government.
Back in 1988 the Conservative government introduced the Malicious Communications Act. Section 127 of the Communications Act of 2003 was introduced supposedly to merely bring the law up to date with the internet age. The earlier 1988 act was brought in when powerful people objected to receiving (paper) letters through the post that they found offensive. Quote from the relevant section of the 1988 law (note that the words in square brackets  were added by a later amendment):
Offence of sending letters etc. with intent to cause distress or anxiety.
(1) Any person who sends to another person—
(a) a [F1 letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any [F2 article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
The Communications Act of 2003 did not merely bring this law up to date at all, in fact the 2003 act vastly increased the restrictions on our freedom of speech because:
a) the 2003 act included communications that were not targeted at any particular individual, such as social media comments simply broadcast to the whole world.
b) the 1988 act included the requirement that the communication must be sent ” with intent to cause distress or anxiety“, however there is no requirement for such an intent in the 2003 act.
It seems to me that there is a huge difference between making general comments on social media and directly sending communications to a targeted individual. The latter action seems to me to verge perilously close to what could be described as harassment, but even then if we have such a restriction on for example expressing our feelings about legislation through a letter to our Member of Parliament, then surely even the 1988 act could put our democratic system in jeopardy, at least in its currently worded form? Provided that such a letter is not of a threatening (or perhaps indecent) nature, but merely expresses for example some robust criticism of a particular policy or action of the politician, then surely it should be lawful?
Of course the internet age has introduced many complications to our lives that simply did not exist before, but fortunately technology has also brought a solution (at least in the case of social media) as now on most of the platforms we have the option to “block” communications from any other user of that platform. We don’t have a technical option to block emails, but most people can simply refrain from making their email addresses publicly available, although admittedly in the case of our MPs this is not so easy as they need to be reachable by their constituents.
I hereby call for the removal in its entirety of section 127 of the Communications Act of 2003. I think the Malicious Communications Act of 1988 certainly needs to be amended to remove the words “grossly offensive”, although I would not I think go so far as calling for its abolition. In summary the word “offensive” is entirely subjective and should therefore never appear in any law.
Please link to this article elsewhere to help us publicize the campaign.
Note that the case I quoted in the last post (part 2) referred to a case where the prosecution was actually under the Communications Act 2003 mentioned in this post, however it additionally “had a hate element” according to the prosecutor:
Lawyer slams ‘ridiculous’ case which saw teen prosecuted for Instagramming N-word rap lyrics
A case I wrote about in 2016, where as far as we can know from news reports the communications were not directly targeted at any individual:
It’s NO LONGER A Free Country
Quote from the news article about the case:
“One comment he made concerned Asian women, another was likely to be offensive to Muslims.”
Other related posts:
Limits Of Freedom Of Speech – Harassment
The Limits Of Freedom Of Speech
What do you think? Please leave a comment below.