Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Expands Expression
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On his public Twitter time line, appellant Chambers posted messages, which others could potentially have interpreted as a threat but also could have interpreted as a joke. The High Court of Justice considered if one of these messages qualified as a message of “menacing character” under the United Kingdom’s Communications Act 2003. The Court considered the actus reus requirement, which involves the context of the message and others’ reactions to the message, and determined that Chambers’ “tweet” did not constitute a menacing message within the meaning of the act.
Appellant was 26 year old Paul Chambers, who the court considered a well-educated man. Chambers, a Twitter user, posted messages to his public timeline on January 6, 2010. These messages were in reference to adverse weather conditions at Robin Hood Airport, from which Chambers was departing on January 15th to meet another Twitter user with whom he had been corresponding. The Court’s records only showed the messages from Chambers, whose Twitter handle was Crazycolours, and not the messages to which he was replying. The messages read:
“@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism”
“@ Crazycolours: That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI.”
These messages were visible to Chambers’ approximately 600 followers, none of whom reported these messages to the authorities. On January 11th, five days after the messages were originally posted, the duty manager in charge of security for Robin Hood Airport discovered Chambers’ messages while reviewing tweets referencing the Airport. The duty manager, who testified that he was unsure if Chambers’ messages were a joke or not, referred these tweets to his manager, Mr. Armson. Part of Armson’s job responsibilities were deciding if potential threats were “credible” or “non-credible.” Though he regarded these tweets as “non-credible,” he complied with airport procedure and alerted airport police to these messages. The airport police took no action beyond referring the matter to the South Yorkshire police.
On January 13th, South Yorkshire police arrested Chambers while he was at work, on suspicion that he was involved in a bomb hoax. This arrest took place seven days after Chambers tweeted the message, and Chambers asserted that he intended these messages to be a joke, rather than menacing. The police, who concluded their investigation on February 10, 2010, found no further evidence to suggest that the messages were “anything other than a foolish comment posted on ‘Twitter’ as a joke for only his close friends to see.”
The police also sought the Crown Prosecution Service’s advice, which soon after charged Chambers with the offense under the Communications Act 2003. The Prosecution Service’s charged and convicted Chambers in the Magistrates Court “for sending by a public electronic communication network a message of a ‘menacing character,’” per the Communications Act 2003 §§127(1)(a) and (3). This conviction was upheld by the Crown Court at Doncaster.
Owen and Williams, JJ., delivered the opinion of the Court. The High Court of Justice considered if either of Chambers’ messages qualified as one “of a menacing character,” within the meaning of the Communications Act 2003. The court considered the traditional dictionary definition of “menace,” but ended up referring to its previous decision in Collins, in which found a message to be menacing when “fairly plainly, [it] is a message which conveys a threat—in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen.” UK, Dir. of Pub. Prosecutions v. Collins,  1 WLR 308.
The Court also noted that before a message can be deemed criminal for being menacing, the judging body should consider the message’s terms, inferences that can be drawn from these terms, the message’s context, and the means by which the message was transmitted. The Court closely examined Chambers’ messages and determined that they were not criminal, based on how easily the message could be traced back to Chambers, the lack of action taken by others who presumably read the message on Twitter, and the lack of urgency with which the messages were handled once airport officials discovered the messages. The Second High Court held that “a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision [of the 2003 Act].”
As the Court did not find the message to be menacing, it did not consider if Chambers had achieved the mens rea needed to violate the act. However, the Court did allude to what it may have considered to be required for a culplable state of mind by quoting Collins. In Collins, Lord Bingham wrote, “Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage.” UK, Dir. of Pub. Prosecutions v. Collins,  1 WLR 308. The Chambers Court expanded upon the lower court’s decision mens rea requirement. The Chamber Court stated, “the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it.”
Additionally, the Court briefly considered if Twitter, a social networking website, constituted a “public electronic communications network” under the meaning of the Communications Act. The Court sided with a comment by Robert Smith QC, who commented on behalf of the state. As the Court described, Smith argued that “potential recipients of the message [on Twitter] were the public as a whole, consisting of all sections of society,” and that it was immaterial that the sender intended his message(s) to be seen by only his followers. The Court agreed with Smith and determined that Twitter qualified as a “public electronic communications network.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court upheld and applied the standard that author’s messages must be of a “menacing” character for him or her to be charged under the United Kingdom’s Communications Act 2003.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The High Court considered if the lower court’s conviction and sentence interfered with the Appellant’s “right to engage in freedom of expression under Article 10(1) ECHR.”
The High Court also considered if §127(1)(a) of the UK’s Communications Act 2003 (i.e. “of a menacing character”) was to be read in accordance with conventional canons of constructions or with accordance of Article 10 ECHR.
§ 127. The Court focused on whether Chambers’ message “crossed the threshold of gravity necessary to constitute a message of a menacing character” under §§ 127(1)(a), (3).
The Court considered if UK, Communications Act 2003 § 127(1)(a) (i.e. “of a menacing character”) was to be read in accordance with UK, Human Rights Act 1998 §§ 3, 6.
Case significance refers to how influential the case is and how its significance changes over time.
This decision was made by the High Court of Justice, Queen’s Bench Division, and lower courts are bound by the decision.
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