There was outrage across twittersphere the other day, when news broke that @Sir_Olly_C was convicted in the Motherland for using a nasty word.
I’ll repeat that shall I … if only to try and convince myself that I’m not dreaming … calling someone the C word is a terrible crime that will see you in court, prosecuted, found guilty and facing a custodial sentence. That’s official because the blogger and tweeter, Olly Cromwell, has today been found guilty under Section 127 of the Telecommunications Act 2003 of making a grossly offensive and menacing comment on Twitter.
Apparently, Olly called a Bexleyheath councillor a cunt, on Twitter, and a District Judge has now referred Olly To Bromley Court for sentencing. The prosecution are asking for a custodial sentence equal to 45 days for each letter.
This, of course, didn’t happen in the land of the free, but where Anglo-Saxon reigns. Aside from thinking ill of George Washington, the Brits have no cherished First Amendment, their freedom of expression stemming from noblesse oblige rather than than any inalienable right.
And yet, as nasty language on the internet crosses borders, some of which may include the use of words for which more delicate souls feel compelled to substitute asterisks for letters lest eyes pop out and heads explode, what happened to Olly Cromwell under whatever passes for law in England is a matter of concern to all.
The word at issue is a particularly unpleasant one. I don’t care for it, personally. I wouldn’t use it in my writing under most circumstances. But because it’s at issue here, it needs to be done: cunt. No asterisks, as if that somehow permits sensitive teacups to pretend their eyes haven’t truly happened upon this word. It’s a collection of four letters. It’s a word like all the others we use. For whatever reason, it sounds foul to most of us. But it’s still just a word. Have we learned nothing from Lenny Bruce?
As it turns out, this story, like most, is somewhat more (and less) involved than first appears. At Beneath the Wig, Brit blogger Wiggy (who goes by the twitter handle @_MillyMoo. I suspect she has a real name, but I can’t find any indication of it at her blog and it says only “Milly B” on twitter) offers the substance of the charge.
Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen*, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?
John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003…
Notably, Milly has outed the foul-mouthed perpetrator, though his name plays no particular role in what happened. This wouldn’t be worth noting, except that Milly B, or Millymoo, or Wiggy, or whoever, writes under a pseudonym. If names are going to be named, start with yourself.
So what heinous conduct was committed by Kerlan in violation of British law?
The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:
Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.
The second said:
‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’
Also worthy of note is that Wiggy/Milly replaced three letters in the first twit with asterisks, though it’s unclear whether this was in deference to the delicate sensibilities of her readers or a reflection of her own hatred of letters.
The test of whether these twits break the law is, per Wiggy/Milly, the “reasonable man” test, apparently because they have no reasonable persons in Britain. Attributing reasonableness to herself (particularly troubling when the self-ascribed reasonable man is pseudonymous), Milly/Wiggy concludes:
The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient. Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.
Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.
Guilty! Not, as the Philistines on twitter cry, because Kerlan uttered the c-word, but because the word “cunt” struck Milly/Wiggy as “grossly offensive.” While she posits that the test is the reasonable man, what she argues is that the test is “whatever I personally find grossly offensive.” And as the use of asterisks suggests, Wiggy/Milly’s threshold is fairly low.
But what of freedom of speech, you ask?
Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:
‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’
Lord Bingham, DPP v Collins ( here ).
This is where we come to an appreciation, however small, of our founder’s inclusion of freedom of speech in the Bill of Rights, a fundamental distinction that we may not sufficiently appreciate in the absence of such a stark contrast as that quoted by Milly/Wiggy.
The Brits adore free speech, until it rankles someone, at which point it’s a crime. The restraint is “directed to a legitimate objective” of not attacking the reputations and rights of others. And if your purpose is to attack the reputation of others because they deserve to have their reputations attacked? Crime. And what rights of others are at stake, the right not to be called a nasty name? Is any of this sounding familiar?
In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.
Before you laugh at this gaping intellectual void, consider that this is precisely what legislature after legislature is trying to do across the country. And just like Wiggy/Milly, they attribute reasonableness to themselves as well, at the expense of a firm grasp of what constitutes free speech.
* It’s unclear whether the name is Kerlen and Kerlan, as Milly/Wiggy uses both spellings.
Update: Ask and you get answers. It appears that Wiggy/Milly is Amanda Bancroft, who writes on this subject at The Guardian. Her bio there says:
Amanda Bancroft is a former practising barrister who has a keen interest in legal issues. She blogs at Beneath the Wig and is putting together the 58% Campaign, aiming to educate on the whole picture of rape.
Perhaps this has a little something to do with her finding a word “grossly offensive?”
Update 2: On twitter, Amanda asserted that this post was “a somewhat unfair representation” of her argument, so I invited her to correct me:
I include an image lest I be accused of further misrepresentation. I hate to misrepresent. It speaks poorly of me.
Sadly, after announcing that I had misrepresented her and that she would correct me, there was nothing forthcoming. I expressed my disappointment to my pal Antonin Pribetic, the Trial Warrior.
And why bother, you wonder, to update this post to include this exercise in passive-aggressive denial? Amanda, the former practicing barrister, has chosen to play legal pundit on the internet, a fine endeavor in itself but one that subjects her views (and particularly her self-described reasonableness in contrast to all who disagree, who are by definition unreasonable) to scrutiny.
We are awash in the blawgosphere and the media with punditry, much bordering on horribly bad and some the absurdly, dangerously ignorant. If someone thinks their opinion worthy of publication, so valuable that others should read it and heed it, then they can’t whine about it being subject to criticism. And it’s fine to disagree with the criticism, but then you have to actually say something.
The blawgosphere is getting increasingly inundated with bad advice, flawed reasoning, and in some instances, utter lies and deceptions. It makes people stupider. Amanda didn’t help, either herself or anyone else.