Offensive Tweeting: Criminal or Just Crass? 'Freedom Only to Speak Inoffensively is not Worth Having

AuthorOluwatomi Ibirogba
Pages85-105
S.S.L.R ‘Offen sive Tw eeting : Crim inal or Ju st Cra ss? Vol.4
Offensive Tweeting: Criminal or J ust Crass? “Freedom
Only to Speak Inoffensively is not Worth Having” 1
Oluw atom i Ibirogba
There is cu rrently m uch interest surroun ding the question wheth er the established
appr oach to freedom of expr ession does m ore to protect high valu e, political speech
to the detriment of casual Internet conten t. This paper star ts off explain in g the
fun dam ent al workings of Article 10 of Th e European Convention for th e Protection of
Hu m an Rights an d Fundamen tal Freedom s (ECHR) as th e lifeblood of dem ocracy
before moving on to examine how the court s rigid adher en ce to communication
legislation pays insufficient regard to the requ irem ents of Art icle 10. Since Article 10
is a qualified right, com plian ce with it requ ires recognition of t he right to freedom of
speech , n o matter how ill judged, and any restrictions on that speech m ust be
necessary and proportionate in pursuing a legitim ate aim such as the protection of
the rights of others. This paper examines the novelty of digital comm u nication and
th e attem pt of commun ication legislation to keep u p with it. On one hand, respect for
amateur digital commun ication does not m ean com plete freedom from
responsibility. On the other hand, wheth er or not th e act falls within art icle 10 and
loses its protection as a constitutional right, this p aper argues that case law has
shown there can be insufficient reason s for involving criminal law against the
speaker .
Introduction
reedom of exp ression is a central and facilitative hum an righ t, universally
recognized as for ming the basis for contesting and safegu arding ot her right s. 2
Symbolically, th e Magn a Carta of 1215 laid down its theoretical foundations
through recognition of the need for unhind er ed polit ical com m unication bet ween
citizens in their effor ts to participate in governm ent al and societal development.3
The present system of inter nat ional regulat ion was developed to universalise human
rights thus The European Convention for the Protection of Hum an Right s and
Fundamental Fr eedoms (“ECHR”) pr ovides a detailed right to freedom of expression
1 Redmond-Bate v DPP [2000] H.R.L.R. 249, [20] (Sedley L.J.)
2 Ignatieff. M, and Gutt man. A, Human Rights as Politics and Idolatry (Princeton University Press, Ne w Jersey,
2001). 90
3 Joyce. D, “Human Rights and The Mediatisation of International Law” (2010) 23 Leiden Journal of
International Law 507-527.
F
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[2014] Sou tha mpton Stud ent Law Review Vol.4
in its Article 10. 4 Prior to the im plem en tation of the Human Rights Act 1998
(“HRA”) there was no gen er al statu tory protection of freedom of expression. Now,
th e HRA gua ran tees th is right u nder dom estic law an d sin ce then, Article 10 has b een
instrumen tal in allowing media and thu s public insight into court processes, which
previously took place behind closed doors. Government h as also r atified the
Universal Declar ation of Human Righ ts (“UDHR”) and the In ternat ional Covenant
on Civil an d Political Rights (“ICCPR”) an d Article 19 of both treaties prot ect s
freedom of exp ression .5
It is difficult to avoid both exaggeration and clich é when describing the growth of
digital technology. In a matter of decades com putin g m oved from mainfram e
computers in universities, fin ancial and Gover nment organ isations to playing an
integral part in our daily lives. Facebook alon e has 901 million month ly active users
making it, in population term s, the third largest ‘country’ in the world.6 Mobile
telephone com m unication is now accessible t o 90 % of the wor ld's population and if
th e world is hom e to 7 billion people, one thir d of th ose ar e usin g the In tern et.7 As an
emerging technology with nearly limitless boun daries an d possibilities, social media
has given users exceptional engagement with br ands, compan ies an d other users. It
is possible, com m on even, to reach an unlim ited au dien ce with the click of a mouse
or th e use of a sm art phone.8
Sever al recent cases h ave highlighted the range of legal controls th at have been
applied to expression on social n etworks and ot her am ateur digital content.9 Thus,
th is pap er exa mines h ow English law is a bit too qu ick to crim inalise wor ds alone and
the balance generally comes down firmly again st free speech . Before an alysing
specific fr eedom of expression concerns in detail, ch apter two will int roduce the
general structure and operation of Article 10. Chapter thr ee affirms that In ternet
communication s are subject to an extensive range of laws and the courts have
applied such laws in a man ner too restr ictive to protect Article 10. Chapter four
follows a sim ilar path contemplating that freedom of expression does n ot call for
absolute protection but seeks to en sure that any controls on expression are
propor tion ate and, particularly, altern atives to criminal law be considered. Such
alt ernatives will then be h ighligh ted in ch apter five.
4 Article 10, European Convention for the Protection of Human Rights and Fundamental Freedoms
<http://www.hri.org/docs/ECHR50.html#C.Art10> accessed 10 December 2012.
5 Spurrier. M, “Gillberg v Sweden: Towards A Right of Access To Information Under Article 10 (Case
Comment)” (2012) 5 European Human Rights Law Review 551-558. 53
6 United States Census B ureau 2011 <http://www.census.gov/ipc/www/idb/rank.php> accessed 11 May 2012.
7 International Telecommunication Union 2011
<http://www.itu.int/ITUD/ict/facts/2011/material/ICTFactsFigures2011.pdf> accessed 1 March 2013.
8 Scaife. L, “The DPP and Social Media: A New Approach Coming Out of The Woods?” (2013) 18
Communications Law 5-10. 5
9 Regina v Blackshaw and Others [2011] E.W.C.A Crim 2312, Keith-Smith v Williams [2006] E.W.H.C 860
(QB), Cairns v Modi [2012] E.W.H.C 756 (QB) etc
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