Six former Metropolitan Police officers have been charged with sending offensive messages in a private WhatsApp group. The Critic’s Freddie Attenborough cites the case as an example of the state’s creeping campaign of mass surveillance and censorship. Here’s an excerpt:
Six former police officers who served in the Met’s Parliamentary and Diplomatic Protection Command during their time with the force have been charged with sending grossly offensive and racist messages by public communication and will appear at Westminster magistrates court next month.
The officers, who retired between 2001 and 2015, have been charged with offences under Section 127 (1) (a) of the Communications Act 2003. It is alleged all six were members of the WhatsApp group, and that the messages that led to the criminal charges were sent and received between August 2018 and September 2022, after their service in the Met had ended.
The charges follow a BBC Newsnight investigation late last year into dozens of messages shared within the chat that the producers were handed by a member of the group. Subsequent media coverage of the case led, in turn, to an investigation by the Met’s Directorate of Professional Standards.
Although the BBC decided not to reproduce the messages because some of them contained “strong racial slurs”, Newsnight reported that the Duke and Duchess of Sussex featured in several images alongside racist remarks. Some of the posts also referenced the Government sending migrants to Rwanda, while others joked about recent flooding in Pakistan, which left almost 1,700 people dead.
There’s no question that messages of this kind would make for grim, deeply unpleasant reading – indeed, had the members of this group still been serving police officers, you could certainly have made a good case for the Met suspending or expelling them for breach of contract. But the key point here is that the intended recipients of these messages were adult members of a private WhatsApp group.
What’s so troubling about the CPS’s decision to charge these six former police officers under s.127 is that it provides yet more evidence of a form of legislative ‘mission creep’, with the state now looking to use the Communications Act 2003 to police not just public, but private interactions.
As things stand, s.127 makes it a crime punishable by up to six months in prison to post anything “grossly offensive” on an “electronic communications network”. Specifically, S.127 (1) (a) reads as follows:
A person is guilty of an offence if he:
- sends 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.
Before we even start to consider the current (mis)application of this provision to private conversations, it’s worth pointing out that there are several things wrong with it as a means to police public communication.
First, any idea of what constitutes the “gross” and the “offensive” is, by definition, a matter of opinion – a situation which has essentially granted carte blanche to judges to criminalise anything they think is unpleasant or hurtful.
Worse still, s.127 is regarded as largely compliant with Article 10 of the European Convention on Human Rights, because statements made by means of a public telecommunications system currently need to have artistic or political meaning to receive its protection. Inevitably, that means that in most cases any appeal to human rights laws is closed off (although that’s something the Free Speech Union hopes to challenge with one of its impending cases).
Finally, there’s the fact that the legislation presupposes, but never articulates, its understanding of a concept that is crucial to any sophisticated approach to communication, namely, the ‘recipient’ – and, more specifically, ‘the intended recipient’.
These problems notwithstanding, in recent years police and prosecutors have jumped at any opportunity to enforce this law whenever someone complains that they feel hurt by what they have seen online or on social media. People who’ve been brought to heel in this manner include Scottish comedian Count Dankula (convicted of a hate crime for filming a pet dog giving Nazi salutes), Kate Scottow (fined for being rude to a trans activist on social media), Caroline Farrow (threatened with a criminal record for misgendering a trans activist) and Joe Kelly (someone the FSU is currently supporting in his appeal against a conviction for a social media post in which he rejoiced at the death of Captain Sir Tom Moore).
And yet, however shocking we may find these cases, there is at least a certain logic to the application of the law.
In each case, we are dealing with an utterance sent by means of a “public electronic communications network” that had as its intended recipient ‘the public’.
That’s in marked contrast to the case of the six Met police officers, where the messages in question were never intended to be seen, heard or read by the public.
What that means is that when this case reaches Westminster magistrates court next month, a judge will essentially be ruling on the entirely hypothetical question of whether certain messages might be considered “grossly offensive” to a public that never actually encountered them, and was never in any danger of encountering them. The fact that in the preceding sentence you can replace the word ‘messages’ with ‘thoughts’ without any loss of meaning gives an indication of just how troubling this application of the law really is.
Worth reading in full.
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