Telling jokes in private can now land you in prison

We wouldn’t put people in prison for swapping obscene remarks in private, would we? In England, at least, the answer to that question is sadly yes. The High Court confirmed as much last week, in a judgement that ought to worry everyone who believes in liberty.

Five years ago, seven Metropolitan Police officers shared some very nasty messages in a private WhatsApp group. These included racial slurs, celebrations of rape and jokes about disabled people. Although normally no one would have been any the wiser to these comments, the members of this particular group were unlucky. One of its members was Wayne Couzens, who raped and murdered Sarah Everard in 2021. After Couzens was arrested, the police found the messages on his phone.

In 2022, two members of the WhatsApp group were prosecuted and convicted under Section 127 of the Communications Act 2003. This law makes it a crime to send ‘grossly offensive’ messages over a public-communications system. Each member was sentenced to three months in prison, though both appealed. Last Friday, the convictions and sentences were upheld by the High Court.

You don’t need to like these guys, or approve of the bone-headed garbage they exchanged, to see that there’s something seriously wrong with this whole affair.

It’s bad enough when the state punishes an individual because what they say in public upsets someone. After all, if you take freedom of speech seriously, you have to accept that no one should have a right to not be offended. But at least we can understand the reasoning behind this illiberal tendency, even if we are fundamentally opposed to it.

What makes the High Court’s ruling different, however, is that there was no ‘victim’ who felt offended. These men have been imprisoned simply because they shared messages among themselves that could be considered offensive by outsiders – people who, in practice, would never have been privy to their private conversations in the first place.

All of this was put to the High Court, of course. But the judges had none of it. They argued that Section 127 prohibits the use of a publicly provided service for the ‘transmission of communications which contravene the basic standards of our society’. According to the ruling, private WhatsApp groups fall under a ‘publicly provided service’ because they use the internet – a public network – to transmit messages, even if those messages are themselves private.

The court admitted that its ruling means that the law could also criminalise a private phone call between two people exchanging, say, racist views. Let that sink in. Even private conversations are now in scope of the speech police.

This case shows why Section 127 must go. It has now become a catch-all provision used by the police, government and the Crown Prosecution Service to criminalise offensive speech – whether over the phone, on social media or anywhere else on the internet. Its use in this instance to penalise purely private interactions marks a new low, but it already has a long and inglorious history of misuse. YouTuber Count Dankula was fined in 2018 after he published a comedic video of his dog doing a Nazi salute. In 2022, Paul Bussetti was prosecuted for sending a video to friends in 2018 that mocked victims of the Grenfell Tower fire. That same year, Joseph Kelly was given 150 hours of community service for a post on Twitter that jokingly celebrated the death of Captain Tom Moore. Essentially, it is now a crime in Britain to tell tasteless jokes.

Even when attempted prosecutions fail, the threat of a conviction under Section 127 can turn someone’s life upside down, including those with totally mainstream views. This is what happened to journalist Caroline Farrow. In 2019, Farrow was asked to attend a police interview and was threatened with a criminal record for the act of ‘misgendering’ a trans activist’s daughter while appearing on ITV’s Good Morning Britain. Clearly, Section 127 can be used to punish people not just for making unpleasant comments, but also for dissenting against woke ideology.

The new Labour government doesn’t exactly inspire confidence that it will uphold free speech. Witness its trashing of the Higher Education (Freedom of Speech) Act 2023 last week. This law, introduced by the previous Conservative government, would have fined universities and students’ unions if they failed to uphold free expression on campus. Although it may seem futile, we should still urge new home secretary Yvette Cooper to seriously consider scrapping Section 127. If she won’t listen to us, then perhaps she should listen to the Law Commission – a body hardly known for its support for free speech – which has also called for it to go, given its authoritarian potential.

Laws that send people to prison for privately expressing offensive comments today can easily be used to criminalise dissent tomorrow. As long as Section 127 remains on the statute book, our free speech will be in peril.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.