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Posted by on Jan 28, 2014 in Freedom of Expression, Politics | 6 comments

Are Twitter Fights Really Illegal? Surely Not!

 

A few days ago I wrote a piece that expressed my worries about the jail sentences handed to a young woman and a young man with learning difficulties for making threats on Twitter. In brief, I cannot deny that threats are beyond the pale and might justify criminal action being taken against the perpetrators, but I am still slightly uncomfortable with the decision for a variety of reasons.

Brendan O’Neill in Spiked has a different take:

If you read the judge’s summing up when he imprisoned Sorley and Nimmo, and the subsequent media coverage of their jailing, it is very clear that fundamentally they have been jailed not for making specific or meaningful threats of violence that had a possibility of being carried out, but for banging out insulting and offensive and outrageous tweets. They have been jailed, not because they are considered a serious physical threat to people, but because they wrote horrible, rotten, shocking things online – in short, because they were insulting.

 

Now, without any legal expertise, I have no idea whether O’Neill is right about this, and can only speculate. It did seem troubling to me that the judge apparently made no distinction between merely insulting tweets (I say ‘merely’ only with regards to the law – it is immoral to insult people, but shouldn’t be illegal), and actually threatening tweets. Of course, I recognise that most of the tweets the judge quoted were direct threats, and there were only one or two ‘mere’ insults. Nevertheless, clarity regarding the law is very important. If a single ‘mere’ insult is illegal according to a senior judge, then that has great significance to the question of how much freedom of expression we are afforded.

Including the insults in with the threats gives the impression to my mind that the insults were salient in the conviction. But, though O’Neill seems convinced this is the case, it surely cannot be true that insults have been declared illegal by a senior district judge. So what is the alternative explanation? Perhaps the judge was including those other tweets for context. Yet if that’s true, then why didn’t he distinguish the insults from the threats, if only the threats were illegal? It would be like saying “you are sentenced to prison for murder, and laughing”. It might lead one to think that laughing is an imprisonable offence! Perhaps therefore, the judgement was just imprecisely written, and the insults were provided for completeness without being clearly distinguished from the actual crimes.

Another possibility is that the insults were important, without themselves being criminal in any way. Perhaps saying “fuck off and die” or “ya not that gd looking to rape u be fine” before making a threat changes the legality of the threat. This seems odd to me though. If you threaten someone with rape or death, then you have already done worse than saying “fuck off, dumb bitch” or similar. I don’t think the insults really change anything here.

In summary, then, I’m unclear why insults would be included in the decision unless either the judge was being vague, the insults change the legality of the threats, or (as O’Neill has concluded) insults are now illegal. My optimistic best guess is that the judge was being careless, though I lack the legal expertise to say that with any confidence.

 

  • SimonNorwich

    Like you I’m not qualified to make a legal judgement in this case, especially as I only have the brief media details to go on, but I do think in principle that when insults are allied with physical threats, they could sometimes reasonably be interpreted as re-enforcing those threats. In other words, the nature of the insults may sometimes lead the recipient to be even more certain that the accompanying threats are genuine, and therefore make them even more fearful. The insults do not, perhaps, make the crime any worse, but they could provide further evidence that a threat is genuine, or could be perceived as genuine, and therefore, in my view, a crime has been committed.

  • http://skepticink.com/notung Notung

    I suppose if you say afterwards “Only joking. Fancy a pint?” it might show that the ‘threats’ were in jest. However, if you’re talking about rape and death, then I don’t see what else “fuck off bitch” brings to the table.

    You might be right though. I wish the judge had been a bit clearer in his written judgement.

  • SimonNorwich

    Certainly the law needs to be clear on this and judges need to think it through and be clear in their statements. It appears likely they’ll be getting a lot of practice on this issue!

  • http://skepticink.com/backgroundprobability/ Damion Reinhardt
  • Beaker

    Reading the verdict, I don’t get the idea that the judge made insults illegal. In fact, the judge specifically points out that certain twitter streams were not part of the verdict, although since these are not quoted I cannot determine whether these were offensive.

    But as far as I can see, the twitter messages the judge quote all are part of the same conversation stream. The tweets the judge writes about form part of a sequence of messages that gets sequentially more violent, ending in the threats. So they are there for context, they show a rhetoric that becomes progressively more violent. I mean, the tweet “the police will do nothing” is pretty neutral as a single tweet, but followed by “rape her nice ass” it becomes menacing.

    To be very honest, I think the actual verdict linked to in the article by O’Neill describes the reasoning for the sentence quite well, and I think O’Neill probably shouldn’t be commenting on legal verdicts if he reads them this inaccurately.

  • iamcuriousblue

    This reminds me of the Gregory Allen Elliot trial going on in Toronto right now. Apparently, the prosecution admits they don’t have any examples of anything explicitly threatening he sent, but the fact that the feminist bloggers who went to the police “felt threatened” is good enough. The mere fact that he used these women’s names with the hashtag #FascistFeminist is considered to be legal harassment.

    In the US, this would be thrown out of court, because there’s some clear precedents like Hustler Magazine v. Falwell that established pre-Internet that merely saying very offensive things about somebody in print does not in itself constitute defamation or harassment. What Canadian law will do is anybody’s guess.

    The mainstream media coverage of this case has been abysmal, with many stories citing this as an example of the victimization of women online without looking closely at the possibility that Elliot really did nothing illegal, or even particularly wrong.