The Current Communication Law and Social Media – Square Peg for a Round Hole?

The recent case of Azher Ahmed, sentenced to 240 hours of community service at Huddersfield Magistrates Court for grossly offensive comments he posted on Facebook, has once again split lawyers and divided people.

Free speech advocates have called Mr Ahmed’s conviction an attack on basic human rights; some lawyers have called it a just and appropriate use of the law. However in my opinion, the true repercussions go deeper and require further examination.

The comments posted by Mr Ahmed were that “all soldiers should die and go to hell”. A prosecution was launched by the Crown Prosecution Service, who relied on Section 127 of the Communications Act 2003 i.e. “if an offender sends by means of a public electronic communications network a message or other matter that is grossly offensive”. The CPS argued the message regarding soldiers was grossly offensive (backed up by the fact that the mother of one of the soldiers killed in Afghanistan was so alarmed she called the police after reading Mr Ahmed’s comments). Mr Ahmed said that he did not consider they were grossly offensive. As such, the matter was left to District Judge Jane Goodwin to determine the scope of ‘grossly offensive’. DJ Goodwin found that the comments posted by Mr Ahmed, in response to those of sympathy following the death of the soldiers were grossly offensive, and convicted Mr Ahmed accordingly.

DJ Goodwin had very little guidance to rely upon; she essentially had to make this decision on what she felt was grossly offensive. Unlike the majority of other criminal statutes the onus is now placed massively on the Court, Judges and Magistrates to take a broad brush subjective approach when deciding such issues concerning social media The legislation exists, in the form of The Malicious Communications Act 1988, The Communications Act 2003, The Protection from Harassment Act 1997 and The Public Order Act 1986, albeit in a rudimentary form, but it is clear that enforcers of the law are trying to stick a square peg into a round hole by making this legislation apply to social media cases. The legislation was enacted before the explosion of social media. One cannot blame Parliament for not realising social media would become such a norm in today’s day and age, not just with youth but along the entire social spectrum, but that said, the legislation needs updating and quickly. The decision of Keir Starmer QC, the Director of Public Prosecutions, to introduce guidelines to assist in the prosecution and sentencing of ‘social media based offences’ will no doubt be welcomed by all solicitors dealing with this ever changing area of law, and will likely make the job of the CPS and the Court’s much clearer. And perhaps most importantly will also help the public at large to understand this legal minefield a little better.
Please click here to listen to me debating the matter on BBC Radio with Martin Kelner.

Link to Radio Clip: Here

John Spyrou
Head of Internet and Media Law
Pinder Reaux & Associates