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5 minutes |  Language |  sweary bits

Rightly or wrongly, I’ve been thinking about free speech and the syllogistic beauty of words this week, what with the demise of a monarch and an upsurge in republican angst. 

I also rediscovered the phrase ‘banging nails through your winkie’, which made me smile, and I’ve started having new opinions about matters multifarious again. God only knows where that will lead. There’s lots of louche language in the ether, too. Not least, a broo-hoo-hah about whether Brenda is laying in or lying in state, a muttering about Johnson still doing the latter, and some pretty shitty shards on shocial media.

Catching up on real people living real lives, it seems as though many people are drawing strength from Winston, an orator whose words are often quoted by the libertarian few in response to the democratic and dystopian mutterings of the many. No, not *that* Winston, the *other* one. The one who said, ‘the urge to shout filthy words at the top of my voice is as strong as ever!’. Winston Smith. Although to be fair, Winston Churchill probably felt that way most of the time.

We consider free speech to be an inalienable right. We do. But the actual right to, and definition of free speech is an increasingly contentious issue. May I say you’re a twat? May I think it, quietly? The prevalent example is that of the words being used in social media – words communicated electronically across an ecosystem of bored eedjits – and for those (the words, not the eedjits), there is a legal definition that should sit, portent-like, over the head of every keyboard warrior.

“I tweeted, you twat.”

For over 20 years, Section 127 of the Communications Act 2003 has made it an offence to send, or cause to be sent, a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’ through a ‘public electronic communications network’. Dirt, detritus, and anything dorks say during Question Time are exempt by means of the watershed, which, incidentally, is a word derived from the German – ‘WasserScheide’ – meaning borderline: not a boathouse dedicated to Mary Whitehouse, bless her puritanical socks. But I digress.

(Second digression, while I remember: Channel the Fourth declares that compound offensives are a no-no, a la “Jesus fucking Christ”. Apparently, the self-humping reference causes serious offence or something.)  

Anyway, when the Director of Public Prosecutions published its guidelines in 2006,  the aim was to strike a balance between affording freedom of expression on the one hand and upholding criminal law on the other. Sounds reasonable, n’est pas. The degringolade of this counsel, however, to my feeble mind, is in the ways in which freedom of expression and the transgression of such liberties have been defined.

The guidelines were based on legislation that prioritised opinions about alleged offences over the consequence of the offences themselves.

This, to me, personifies ignotism: apparently, it is the ability to reason of the persons judging the words, which is the influencing factor in the judicial process. Not the words themselves. Is a twat, always a twat? Yes, of course, he is (please refer to my thirteen-part correspondence course for tips on causing multi-faceted offence with one sentence).

“So, what’s an offence?”
“Divisive. Usually about 6 foot high.” 

By taking the DPP’s guidelines to heart, if I want to comment negatively on someone’s behaviour or character using social media then I may do so providing I do it within the bounds of reasonability. Or in other words, just … make it less than grossly offensive in the opinion of the reasonable hoi polloi.

Like a cat litter tray, perhaps, varying in its ability to absorb acridity, it is the deemed level of offence that is the divisive, decisive factor. The Communications Act 2003 supported this, stating that a parsimonious adjudicate must demonstrate I was aware, or intended a message to be grossly offensive, indecent, or menacing before I communicate it. No idea why I’ve deemed the adjudicate to be parsimonious, saving the fact I’d considered honey-roast root vegetables for supper, but that’s squirrel-brain for you.

A state of mind is, apparently, inferable from the terms of the message or from my knowledge of the likely recipient. Also, the offence is committed by sending the message, not receiving it. Believe it or believe it not, there’s no requirement for a person to see a message, or to be offended by it themselves, for it to be deemed offensive enough, all other factors considered, to warrant prosecution. No, a reasonable person – a third party, impavid and inquisturient, yet not party to the actual poop-slingin’ – may judge my words to be grossly offensive. In theory, I can say you’re a complete twat and, if a judicant person agrees you’d receive my words as a grossly offensive interpretation of your personality, well, that’s that. Whether you’re a twat or not.

Lord Bingham gave direction in DPP v Collins [2006] UKHL 40[1] to this effect: “There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms *liable* to cause gross offence to those to whom it relates.”

Read that again. It doesn’t matter what I type into a tweet. An intended recipient doesn’t have to receive the message for those words to qualify as being grossly offensive and for me, the typist, potentially, to be prosecuted. The words must simply exist and – the law says – the opinion of an unrelated, yet reasonable, third party will be the measure by which the typist is held to account.

I think I need a little lie down. Lay down?
A marmalade sandwich, at the very least.[2]



[2] Excellent coffee, great view, whisky marmalade on good bread. Accept no substitute.