UK man named Joseph Kelly has been sentenced to 150 hours of community service and 18 months of supervision for a ‘grossly offensive’ Tweet about Captain Sir Tom Moore.
Captain Sir Tom Moore was an army veteran who became a household name across the UK thanks to his resilience and community spirit. In early 2020, at the age of 99, he raised well over £32million (estimated to be closer to £40million with gift aid rebates) for the NHS. On the day after Captain Sir Tom Moore passed away, Joseph Kelly tweeted that ‘the only good Brit soldier is a deed one, burn auld fella buuuuurn.’ He was drunk at the time and likely thought little of posting the Tweet, but it was met with considerable repercussions.
The tweet was only live for 20 minutes, but this was long enough for it to gain a significant reaction on the platform. Once the genie was out of the bottle, deleting the tweet was too little too late.
Joseph Kelly was charged under Section 127 of the Communications Act which makes it an offence to send ‘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.’ Opinions on whether his sentence is too extreme or too lenient vary
The challenge lies in determining what should be classed as ‘offensive’. The tweet that earned Kelly his sentence can certainly be defined as such, but who has the final say on this classification?
Paul Chambers was arrested for a tweet in 2010 which sparked a national debate about the use of Section 127. Dubbed the ‘Twitter Joke Trial’ the charge against him was eventually dropped when his joke about blowing up an airport was deemed not, in fact, menacing or indicative of intent. Determining the intent of tweets and direct messages is always difficult, making identifying legitimately dangerous messages a difficult task. Erring on the side of caution when these threats emerge is understandable, but platforms are also reluctant to do anything that could be interpreted as infringing on free speech.
In yet another case, Isabella Sorley tweeted extreme threats to feminist campaigner Caroline Criado-Perez that landed her 12 weeks in jail. In hindsight, she acknowledged that she posted the tweets when drunk and reflected that ‘if you’re putting someone’s life in danger or making them feel scared, that’s different to free speech.’ Free speech does not mean freedom from consequences, but policing those consequences is not easy.
Section 127 of the Communications Act is also applicable to fake news: ‘a person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he sends by means of a public electronic communications network, a message that he knows to be false’. This remains just as complex to police as determining what is deemed offensive, if not more so.
Far fewer people are convicted under Section 127 than potentially could be, but there are still hundreds of successful prosecutions every year – often for insulting, abusing, and harassing public figures. Cases involving public figures seem more likely to lead to prosecution, but this may be down to the fact that these are the ones that gain sufficient attention to make it to court in the first place. The threshold for what is ultimately deemed illegal is very high and the content in question shows proven intent to do real harm.
In 2012, Keir Starmer – who was then head of public prosecutions – noted that ‘the Communications Act was originally drafted in 1935 to protect telephone operator staff from abuse’ so perhaps cannot be directly applied to modern communications. Having last been updated in 2003 the legislation has certainly evolved since its inception, but it is considerably out of date when the extent of the developments we have seen in the past decades is taken into account.
Section 127 is soon to be replaced by the sweeping Online Safety Bill which seeks to regulate social media giants and introduce new offences and new fines to make the UK ‘the safest place in the world to be online’. The draft Bill lays out protections for free speech, but many are worried it will lead to unintended widespread censorship. Keeping every single internet user safe online while protecting the right to free speech is an undeniably vast task, and there is no single clear answer on how to achieve the perfect balance.
