Cyber Security / Cyber Crime, Digital Rights, Freedom of Association and Assembly / Protests, Hate Speech
The case of Udruženje Q za promociju i zaštitu kulture, identiteta i ljudskih prava queer osoba
Bosnia and Herzegovina
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The High Court of Justice Queen’s Bench Division held that a District Judge should have considered whether a video recorded by the defendant Bussetti was seriously offensive to the public and was substantially similar to a video uploaded to YouTube. Paul Bussetti had recorded and uploaded to Whatsapp a video of people burning an effigy depicting Grenfell Tower, a building in which 71 people died. An unknown person also uploaded a video of the event on YouTube which went viral, garnering newspaper and television attention. The Director of Public Prosecutions accused Bussetti of breaching s.127(1) of the Communications Act 2003 by sending a grossly offensive message by means of a public electronic communications network. The District court dismissed the case finding the prosecution had not been able to prove that the video uploaded to YouTube was the one recorded by Bussetti. On appeal, the High Court of Justice Queen’s Bench Division held that the District Judge did not correctly appreciate that the defendant himself had admitted to the police that the video uploaded by an unknown person to YouTube was substantially similar to the one he recorded. However, the Court held that a new trial should be conducted before a differently constituted court. The Court held that it should be cautious in the context of a cassation appeal and not substitute the trial to be conducted under a lower court. In particular, the Court mentioned that Bussetti had presented further legal arguments as to whether WhatsApp is a public electronic communications network for the purposes of section 127 of Communications Act 2003, which were not heard.
On November 3, 2018, Paul Bussetti participated in a Bonfire Night party with thirty other people at the home of one of his friends. Several of the party guests brought “effigies to burn at the bonfire.” One of these effigies represented Grenfell Tower. The referred effigy had a sign reading “Grenfell” on the top and showed representations of people on the upper floors of the tower, one of them wearing a hijab.
Bussetti not only recorded a video of the burning of the Grenfell Tower effigy on his cell phone, but also sent it to two WhatsApp groups, each with relatively few members.
By November 5, 2018 the video had been shared on social media, and even attracted the attention of television and a national newspaper, and Bussetti handed himself in to the local police station to be questioned.
Paul Bussetti “admitted filming the Grenfell Tower effigy burning and sending it to a WhatsApp group” [para. 4]. Likewise, Bussetti “thought he had deleted all the videos of the Grenfell Tower effigy that were on his phone” [para. 4]. In turn, when the police showed him a video of the burning of the Grenfell Tower effigy that was obtained from the internet, he “said he believed it was his recording” [para. 5]. He further acknowledged that the video was “terrible” and could be offensive and frightening for people, more so for the survivors. At the same time, he denied that it was his intention for the video to go viral, that he recorded it without any purpose, and that it was a horrible video.
For these facts, Paul Bussetti was charged on the grounds that he sent “a grossly offensive message by means of a public electronic communications network, contrary to s.127(1) of the Communications Act 2003” [para. 6].
Paul Bussetti argued that although he had filmed a video of the burning of the effigy depicting Grenfell Tower, he clarified that he had not uploaded it to any social network such as YouTube or Facebook. Likewise, he remarked that he had no purpose in sending the video to a WhatsApp group, he had been drinking during that night, and considered that his act had been “stupidity” [para. 9]. In turn, he acknowledged feeling very badly and that the video constituted a terrible act. In addition, Bussetti clarified that the figures of people in the effigy that was burned represented his friends.
For his part, the prosecutor considered that Bussetti’s acts could constitute a breach of s.127(1) of the Communications Act 2003. In addition, the Prosecutor put forward the testimony of two witnesses who testified that the video was horrible to watch, that it constituted an attack on the Grenfell community, and that it was stereotypical and traumatizing. In addition, the Prosecutor requested that other racist text messages found on Busetti’s cell phone, which was seized by the police, be taken into evidence.
During the trial, the video was played, which showed that while the effigy of the Grenfell Tower was being burned, some voices of the people being recorded could be heard saying: “Help me, help me”; “The little ninja’s getting it”, which was qualified as a “discriminatory” comment for the prosecutor; another person could also be heard saying “That’s what happens when they don’t pay their rent”.
However, during one of the Trial hearings, one of the prosecutor’s lawyers acknowledged that Bussetti had not been the only person at the party who had recorded a video of the burning of the effigy depicting Grenfell Tower, which caused some degree of consternation. Also, the prosecution conceded that it could not prove that the video uploaded to social media had been Bussetti’s [para. 9].
On 29 October 2019, Chief Magistrate, District Judge Arbuthnot, held that “I cannot be sure that the video relied on by the Crown is the one taken by the defendant, i.e. the message sent by the defendant is the one that has been played to me. I cannot be sure that the cut-out images on the tower were not the defendant and his friends, burnt in a bonfire joke of colossal bad taste” [para. 16]. District Judge Arbuthnot admitted that disseminating this type of video on the Internet, even in a WhatsApp group, could in certain cases or in certain circumstances, constitute an offense under section 127 of the Communications Act 2003, however in the present case the prosecution had not been able to prove that the video uploaded to social networks was the one recorded by Bussetti. District Judge Arbuthnot remarked that although Bussetti had admitted to the police that the video uploaded by an unknown person to YouTube was similar to the one he had recorded, due to the lack of evidence in this regard, she could not be certain – beyond a reasonable doubt – that it was exactly the video recorded by the defendant.
The Director of Public Prosecutors appealed District Judge Arbuthnot’s decision to the High Court of Justice Queen’s Bench Division.
Justice Bean delivered the decision of the Court. The High Court of Justice Queen’s Bench Division should have decided whether the video recorded by the defendant Bussetti was substantially similar to the video obtained from YouTube by the police and whether the District Judge should have found that the video recorded by Bussetti was seriously offensive to the public or the victims of the Grenfell tragedy.
The Director of Public Prosecution held that the District Judge could not reasonably conclude that Bussetti could not be convicted without knowing whether the video that had been obtained on YouTube was exactly the video recorded by him. In this regard, the Director of Public Prosecution argued that defendant Paul Bussetti had stated to the police that he believed the YouTube video was the one he had recorded and shared on two WhatsApp groups.
Justice Bean explained that under s. 127(1)(a) of the Communications Act 2003, a person is guilty of an offence if he sends by means of a public electronic communications network a message that is seriously offensive. It also held that the leading case in relation to this rule is the decision of the House of Lords in Director of Public Prosecutions v Collins 2006. In that decision, Lord Bingham of Cornhill – with whom all the other Lords concurred – held that the purpose of s.127(1)(a) is not to protect individuals from receiving unsolicited messages which may be seriously offensive to them, but that the rule prohibits “the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society” [para. 24].
Justice Bean also recalled that the 2006 case Director of Public Prosecutions v Collins stated that “it is plain from the terms of section 127(1)(a), as of its predecessor sections, that the proscribed act, the actus reus of the offence, is the sending of a message of the proscribed character by the defined means. The offence is complete when the message is sent. Thus it can make no difference that the message is never received, for example because a recorded message is erased before anyone listens to it” [para. 24].
In relation to the comments that could be heard from the video showing the burning of the effigy depicting Grenfell Tower (these are, “help me, help me”; “The little ninja’s getting it”; “That’s what happens when they don’t pay their rent”), Justice Bean considered that “it is inexplicable what some people find funny, but behaving in a tasteless and insensitive manner on private premises is not a criminal offence” [para. 10 ]. However, Justice Bean clarified that “section 127(1)(a) of the 2003 Act does not require any element of racism. The issue was whether Mr. Bussetti had sent via WhatsApp a message that he intended to be, or was aware that it might be, seriously offensive to members of the public, in particular members of the Grenfell community, who saw it. Not all of the victims of the Grenfell Tower disaster were from ethnic minorities, although many were” [para. 44].
Justice Bean argued that the three-minute video shown at the hearing during the Trial had been uploaded by an unknown person to YouTube. He also clarified that the video showed how the effigy depicting Grenfell Tower with a sign reading “Grenfell” was burned.
Also, Justice Bean remarked that District Judge Arbuthnot did not appreciate that the defendant admitted in a police interview that he “believed” that the video uploaded to YouTube was the one recorded by him. In this regard, Judge Bean remarked that he “would accept the Prosecution’s submission that the Chief Magistrate did not address the significance of the fact that on 6 November 2018, i.e. two days after the bonfire, the defendant was shown the video that had been uploaded to YouTube; he accepted that it was his; and he himself described it as shocking and horrific. Assuming to his credit that it was not his but Mr. Hancock’s or someone else’s, it was so similar in what it showed that Mr. Bussetti thought it was his. No one suggests that there were two different effigies burned at the stake. It may be that the sound quality of Mr. Bussetti’s video was not as good as the video we have seen (if it was not the same), or that the camera angle was slightly different, but that is of minimal significance. In my judgment, a trial court would be entitled to conclude that the section 127(1)(a) offence was constituted by a video of the burning effigy without any soundtrack” [para. 36].
Further, Justice Bean held that given that Paul Bussetti’s video was substantially similar (though perhaps not identical) to one uploaded by an unknown person to YouTube, District Judge Arbuthnot should have considered whether its content was “grossly offensive” and whether Bussetti intended it to be or was aware that it was likely to be.
Finally, Justice Bean had to consider what type of order to make on appeal. On the question, Justice Bean held “I would allow the appeal and remit the case to the Westminster Magistrates’ Court.” [para. 43]. Furthermore, Justice Bean considered that a new trial should be held before a differently constituted court rather than sentencing the defendant Bussetti directly. While Justice Bean recalled that previous cases had reversed an acquittal for a conviction on appeal under s.127(1) of the Communications Act 2003, those cases were on very simple and obvious facts.
In turn, Justice Bean stated that “on a relative appeal this court should be slow to substitute its own view on whether a communication is grossly offensive where the lower court, even committing an error within Edwards v Bairstow, has acquitted. Moreover, as noted above, it was clear during the course of the hearing that further legal argument had been advanced on behalf of Mr. Bussetti in relation to whether WhatsApp is a public electronic communications network for the purposes of the 2003 Act, and we did not hear argument on that point” [para. 43].
Justice Dove adhered in full to Justice Bean’s opinion and rationale.
For all the above reasons, the High Court of Justice Queen’s Bench Division ordered that “the appeal be allowed” and that the case be “remitted to Westminster Magistrates Court for a retrial before a differently constituted court.” It further decided that the respondent should “pay the appellant’s costs in the sum of £6095 within 28 days”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court of Justice Queen’s Bench Division held that it should not convict directly on appeal a defendant accused of having breached s.127(1) of the Communications Act 2003 for having recorded and sent to two WhatsApp groups a video considered by the prosecution to be discriminatory and also seriously offensive to the public or the victims of the Grenfell tragedy. The Court considered that it should uphold the prosecution’s appeal and overturn the defendant’s acquittal, but remit the case to a new court to analyze the defendant’s new arguments that had not been heard (i.e., whether WhatsApp is a public electronic communications network for the purposes of section 127 of the Communications Act 2003). In this sense, despite the fact that the video could be considered seriously offensive and discriminatory, the Court considered that it should be cautious in the context of an appeal and not convict the defendant by substituting the trial to be conducted. In short, the decision reflects that even in the face of “expressions” that may be considered seriously offensive and discriminatory, a sentence of conviction limiting freedom of expression must be taken by examining all the arguments of the defendant and respecting his judicial guarantees.
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