Can tweeting be a crime?

As a trans woman, you may be a public figure without realising it.

Kate Scottow was found guilty of a criminal offence for defaming Stephanie Hayden on Twitter, but won her appeal. The prosecutor and Scottow agreed that Hayden was a “public figure”, simply because she tweets her opinions. The judge said “such a person has ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’, and others can expect them to be more robust and tolerant accordingly” of comment or abuse. The comments of a public figure about court action are matters of public interest, and people may weigh in to a public conversation about it.

So I am probably a public figure because of this blog. You may be, if you have a twitter account, or have ever posted a tiktok video.

There are various possible offences if you tweet nastily.

Sending indecent, threatening or false tweets with the intention of causing distress or anxiety to the recipient is an offence.

Harassment is an offence, but just causing alarm or distress is not enough: it must be “oppressive and unacceptable”. This does not depend on the victim’s feelings, but the judge’s supposed objectivity.

Persistently tweeting for the purpose of causing annoyance, inconvenience or needless anxiety to another is an offence. The judge said, surely Parliament did not mean mere annoyance, inconvenience or anxiety. This is so bizarre that I have to quote the exact words used.

The Communications Act 2003 s 127(2)(c) says “A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—… (c) persistently makes use of a public electronic communications network.”

But the judge said, “It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature, or such as to cause anxiety for which there is no need.” He says they have to be persistent, and for the purpose of causing annoyance, inconvenience or anxiety, para 29, and later in para 32 he says they must have no other purpose.

All these are subject to the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas. States can restrict that right if it is necessary to do so for particular purposes including protecting the rights of others.

So it is always a balance.

The Magistrate’s court found Scottow guilty of persistently tweeting for the purpose of causing annoyance, inconvenience or needless anxiety, but they faced an additional hurdle, a six months’ time limit. There were tweets less than six months before, and tweets more than six months before which could only be considered if they were a single course of action.

The police and the district judge thought the tweets were bad enough to be criminal. The appellant judge disagreed.

The judgment quotes the offensive tweets. There is misgendering: “he is a very sick individual I’ve evidence of that”. I don’t like Scottow calling Ms Hayden “sick”, but that was more than six months before, so not relevant. Also more than six months before, “I have many leads on the claimant”, which is threatening. Hayden got an injunction against Scottow, and Scottow used a new Twitter account to abuse the injunction.

The judge says the older tweets are defamatory or insulting.

It may be possible for abusive tweets to be criminal. Violent threats may be. Prosecutors may not think them serious enough to take action.

If you tweet, and someone tweets nastily at you, block them. After the appeal judgment, the courts may just not get involved. This is the judgment.

All comments welcome.

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