Legal Update: Harry the Owl, Kate Scottow and Article 10
An interesting morning for those interested in gender critical views and freedom of expression in the UK.
Kate Scottow, who tweeted personal gibes to a trans woman, has been found guilty of an offence under s.127 Communications Act 2003.
At the same time, Harry Miller has won his judicial review claim in which he asserted that having his tweets recorded as a “hate crime incident” was an infringement of his rights under Article 10.
How can the two decisions co-exist?
They are different areas of law. Kate was prosecuted by the CPS for a criminal offence, while Harry was bringing a civil claim.
s.127 Communications Act is the provision under which Kate was prosecuted. It makes it a criminal offence to “persistently” use social media “for the purpose of causing annoyance, inconvenience or needless anxiety to another.” In other words, the action has to occur more than once, and must intend to annoy or cause anxiety to the other party. The evidence was that Kate had disregarded an earlier agreement not to tweet at the complainant, which meant the ‘persistence’ threshold was likely to be met.
It is an incredibly controversial law. This is not the first case in which onlookers have questioned whether it can really be right to criminalise “annoying” people - even persistently. However, as the law stands at the moment, it is indeed illegal to annoy people on Twitter if you do it persistently and it is aimed at them personally - subject to freedom of expression considerations which will no doubt be aired at appeal. A list of others who have been prosecuted under the same provision is available on the Wiki Open Rights Group and it covers a wide spectrum of online behaviour from serious threats at one end, to at the other a man who drew a penis on a picture of a police officer and posted it to Facebook, thereby upsetting the officer. (How times change in the short period since White v Chief Constable of South Yorks, where police were presupposed to be persons “of extraordinary phlegm.”)
The controversy in the law is around Article 10 of the Human Rights Act, which protects a person’s right to freedom of expression.
However, Article 10 is not an “absolute” right. Absolute rights are right to life (Article 2), freedom from torture (Article 3) and right to a fair trial (Article 6). The rest are “qualified” rights - that is, the state may interfere with the individual’s rights where it is justifiable. In the case of Article 10, that is where it is “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.””
This is where Harry’s case comes in. Harry had been spoken to by a police officer at his home and warned about his ‘conduct’ in tweeting gender critical views (much of which the judge categorised as ‘opaque,’ ‘unsubtle,’ and ‘of interest only to obsessives.’) The complainant, Mrs B, had given an ‘inaccurate’ report to police of what Harry had actually said, and the police officer then ‘misrepresented’ to Harry that multiple people had been upset by his views. His tweet was recorded a a “hate incident” which would then be disclosable on an enhanced DBS check notwithstanding that no crime had been committed and wasn’t likely to be.
He applied for a judicial review of the police decision, arguing that it was an unlawful interference with his Article 10 rights.
The judge did not accept Harry’s argument that the whole of the guidance on recording hate crime / hate incidents was unlawful under Article 10. However, he found that the recording of Harry’s particular tweets as a hate incident, his visit by the police, and warning to desist or face prosecution, amounted to an interference with his Article 10 rights because it was disproportionate. It is likely that this case too will be appealed.
Summary
Kate’s case and Harry’s case were different because
Kate had targeted her tweets at an individual and Harry had not
Kate was being prosecuted under criminal law and Harry was bringing a claim under civil law
Postscript
In sentencing, the District Judge commented to Kate that “We teach our children to be kind.” Kindness is not legally mandated - even by s.127 Communications Act 2003. It is permissible to be forthright and even unkind, as long as there is no intention to target another person.
The Equal Treatment Bench Book warns judges that “Using acceptable terminology avoids offending parties and witnesses and gives them confidence they will receive a fair hearing. For example: Adult women should not be referred to as ‘girls’.” Nor, I would suggest, should they be condescendingly be told to be “kind,” a heavily gendered term. It is only likely to irritate us.