After the announcement last week that Daniel Thomas will not be being charged under the Communications Act 2003, we ask, what this piece of legislation actually covers.
On 30 July 2012, Mr Thomas posted a ‘Tweet’ on his Twitter account making homophobic comments about Olympic divers Tom Daley and Peter Waterfield. He was arrested awaiting prosecution under the Communications Act 2003.
Section 127 (1) of the Act states as follows:
127 Improper use of public electronic communications network
(1)A person is guilty of an offence if he
- sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
- causes any such message or matter to be so sent.
The question therefore for the CPS was to establish of the comments made by Mr Thomas were ‘grossly offensive’.
The Director of Public Prosecutions in this case summarised that this case hinged on the following factors;
- However misguided, Mr Thomas intended the message to be humorous.
- However nia’ve, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family.
- Mr Thomas took reasonably swift action to remove the message.
- Mr Thomas has expressed remorse and was, for a period, suspended by his football club.
- Neither Mr Daley nor Mr Waterfield were the intended recipients of the message and neither knew of its existence until it was brought to their attention following reports in the media.
Should the intentions of the accused really be brought into question here? Should the intentions of a person who feels is acceptable to write a ‘tweet’ of this nature in the first instance be considered anything less than dishonourable?
If a comment is not intended to be viewed then why post it on a social networking site, this is nothing short of common sense.
This is a further example of the misuse of the word ‘banter’. Mr Thomas only meant the comment in jest and as such the CPS found that his comment was therefore not grossly offensive and un-prosecutable. Is this just? Surely an intention to make such a statement should be an offence without any further question, regardless of the humour behind it. It therefore begs the question of what is actually achievable under the Communications Act 2003 if the burden of proof is so high. We have seen previously that employees have been prosecuted for their use of social media against their employers however it looks that business are not going to be afforded the same protection against members of the public.
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If a consumer posts a negative comment about a business on a social networking site, it looks under the act that unless the comment is intended to be grossly offensive, the consumer will face no criminal prosecution. This leaves businesses exposed to criticism from consumers without notable redress. Whilst we the merits of freedom of speech can be seen in this argument, this case appears to be tipping the balance of this freedom too far in favour of the maker of the statement.
This case has sparked much debate as to the legal boundaries of freedom of speech within the modern age where social media is such a huge part of everyday life. The Director of Public Prosecution intends to release new guidance as to how to prosecute cases of this magnitude, We await the outcome of such guidance with interest. We are however sceptical based on the outcome of the Thomas case.