The recent High Court decision stressed that the Article 10 right to freedom of speech includes the right to cause offence.
Is “being mildly rude on the internet” an offence? For Kate Scottow, the answer to that was, at least for a time “yes”. She was convicted on 7th February 2020 at St Alban’s Magistrates’ Court of a summary-only offence contrary to s127(2)(c) of the Communications Act 2003, namely the persistent use of a public electronic network “for the purpose of causing annoyance, inconvenience or needless anxiety to another.”
The substance of the offence was comments she had made on Twitter about Stephanie Hayden, a transgender woman and self-styled activist in the “women’s rights vs transgender rights” debate (which rages fiercely in certain corners of Twitter). Scottow’s comments were not complimentary: in one, she said of Hayden
“This person is not a racist, xenophobic, larping lawyer/transwoman. This person is a crook using the trans façade to ensure they aren’t caught. A pig in a wig.”
The majority of the comments were made about, not to, Ms Hayden; Scottow did not tag her into the tweets (this is a means of ensuring the tagged person sees the tweet); and at the time of some of them, she had in fact blocked Ms Hayden from seeing anything she posted. Ms Hayden was only able to see these tweets by creating a new, non-blocked identity and looking for them.
Nonetheless, in late 2018 Hayden went to the police, alleging harassment; Scottow was arrested and interviewed. There followed a lull of several months in the criminal proceedings, during which time Hayden obtained a wide-ranging injunction preventing Scottow from publishing personal information about Hayden, “misgendering” her on social media, referring to her previous male identity or implying that she was racist.
Then in March 2019, Scottow (using a new Twitter identity) had a conversation online with Hayden about the injunction. Hayden was initially unaware that Scottow was behind the new identity, and made no objection to the comments (which were argumentative but not insulting). On learning the identity of the user, however, she reported these comments to the police as well as further evidence of harassment. Scottow was interviewed for a second time, and charged with the s127(2)(c) offence.
It’s worth considering the hierarchy of harm implicit in s127. It begins with s127(1), which makes it an offence to send messages via a public electronic communications network that are grossly offensive, indecent, obscene or menacing. Then it moves down to s127(2)(a) and (b), which deal with sending or causing to be sent messages which are untrue. Last, and surely least, comes s127(2)(c): persistently using the network to cause annoyance, inconvenience or needless anxiety.
It is perhaps surprising to find that there is, it seems, a criminal offence of causing “inconvenience”, or indeed “annoyance;” it is a lower bar than we might ordinarily expect for criminal liability. Furthermore, those familiar with Twitter may feel that it is a platform which is rarely used for anything other than the causing of annoyance. If this is indeed the law, and were it generally applied, it would be a rare and extraordinarily courteous Twitter user who would retain their good character.
Kate Scottow did not, at first instance, retain hers. She was convicted after trial, the District Judge commenting:
“Article 10 rights [to freedom of expression] are not unfettered…I do not find your communications to be part of a debate, they are merely personal comments aimed at Ms Hayden….. There should be no restriction on proper debate, but I do not find that what you did was in furtherance of any debate.”
She referred to comments made by Scottow as
“simply unkind and abusive….Not part of a debate, it was abuse for the sake of it… A comment which Ms Hayden found distressing, and forms no part of any debate.”
And she added (in an admonition much discussed on Twitter thereafter):
“We teach our children to be kind…..and there is no reason why, simply because something is on social media, we should not follow that rule as adults.”
Really? asked the aforementioned corner of Twitter, loudly and indignantly, following the conviction. Can it seriously be a criminal offence to be “unkind” on Twitter? Can “personal comments” become a criminal matter, if they are made via a public electronic network (such as Twitter)? Do they have to be, as the District Judge clearly implied, part of a “proper debate” to be lawful?
These were, in essence, the questions before the High Court on 10th December, when they considered the appeal by way of case stated. The constitution of the Court suggests it was a matter they were taking seriously: the case was heard by 2 judges, Bean LJ and Warby J. The latter has special knowledge of the matters raised, being the judge in charge of the High Court’s specialist Media and Communications list. (It may also be of relevance that Ms Hayden is something of a serial litigant; the High Court had just days earlier refused a claim by her for an injunction, claiming harassment by someone else:
There were matters in the appeal other than that point: the Court found on the facts of the case that the 2018 tweets were not part of a course of conduct with the 2019 tweets, and so (they not having been charged as a separate offence within the 6-month time limit for summary matters) the 2018 tweets fell away. What remained was simply insufficient to found a conviction, and the appeal would have succeeded on that point alone.
However, the Court went on to consider the “being rude on Twitter” question, which is the one likely to be of wider applicability.
The “being rude on Twitter” question
Warby J observed that the s127(2)(c) offence seemed to have been represented by the Crown as:
“a lesser version of harassment, with a less demanding threshold – a kind of ‘harassment-lite,’ in which it was enough to prove an intent to cause offence.”
That, he said, is not the law. What, in that case, is it? He went on to say:
“These provisions were not intended by Parliament to criminalise forms of expression, the content of which is no more than annoying or inconvenient in nature….I do not consider that the mischief aimed at by Parliament when it passed s127 of the 2003 Act was as broad as causing offence online.”
He made the following observations about the correct reading of the section:
- The causing of annoyance/inconvenience/anxiety must be the purpose of the communication; not, as in the Malicious Communications Act, “one of the purposes.” Thus, where (as here) tweets are not sent to or tagged to the Complainant, and the Complainant is blocked, these are facts which will be relevant; if your purpose is to cause annoyance/inconvenience/anxiety, the normal course of action would, after all, be to send the tweets directly to the Complainant. The fact (on which the District Judge had relied) that the Complainant may nonetheless manage to find them, despite being untagged/blocked, is neither here nor there: “foreseeability is not to be equated with purpose.”
- It is the element of persistence itself which must cause the annoyance/inconvenience/anxiety, rather than the content of the communication; so for instance “prank calls, silent calls, heavy breathing and other forms of nuisance call” would fall within the section – and indeed are “the kind of behaviour that I consider the legislature intended to prohibit by enacting this offence.” (Though note that this does not mean the content is necessarily irrelevant).
- Where the content of the communications is before the court as causing annoyance etc, the Court must have in mind the Article 10 right to freedom of expression, and the Court’s duty under s3 of the Human Rights Act, to read and give effect to primary legislation in a way that is compatible with Convention rights. This had not happened in the Scottow trial: “The Prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend… The Judge appears to have considered that a criminal conviction was merited for acts of unkindness, and calling others names.”
In reference to the fact that, in her sentencing remarks, the District Judge had clearly attached considerable importance to her finding that Scottow’s comments did not form part of a ‘proper debate,’ Bean LJ commented laconically:
“It is not the law that individuals are only allowed to make personal remarks about others online if they do so as part of a ‘proper debate’.”
he concludes, in words that will be welcomed by Twitter users across England and Wales:
“I do not consider that under s127(2)(c) there is an offence of posting annoying tweets.”
- Appeal allowed, conviction overturned.
High Court QB Division 10th December 2020 (judgment published 16th December 2020)
This article entitled “Is “Posting Annoying Tweets” a Criminal Offence? The impact of R v Scottow ” was written by Kate Roxburgh. For further information on her practice or to instruct Kate, please contact Robin Driscoll, Senior Criminal Clerk on Telephone: 020 3334 4253 or Email: firstname.lastname@example.org