Tweet conviction raises further questions on online offence

A conviction for sending an offensive Tweet about Sir Captain Tom Moore has exposed yet again the inconsistency and perversity of Court treatment of social media content.

A 36 year-old man from Glasgow was found guilty of sending a grossly offensive Tweet concerning Captain Sir Tom Moore this week. On 3 February 2021 – shortly after Sir Tom’s death – he tweeted “the only good Brit soldier is a deed one, burn auld fella buuuuurn”. He was charged under the Communications Act 2003 and found guilty of sending a “grossly offensive” message following a trial at Lanark Sheriff Court.

Captain Sir Tom Moore became a national figure when he raised millions for the NHS during the Covid pandemic, walking solitary laps of his garden. He was hailed as a national hero and, in the immediate aftermath of his death, the deeply unpleasant words published caused some outrage. While not dismissing the fact that the Tweet published by Kelly was incredibly offensive and hurtful, it is difficult to say that this decision was not motivated by other factors or that similar words about another individual would have been treated in the same way.

Section 127 of The Communications Act 2003 provides that a person is guilty of an offence if they send, 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. The defence put forward arguments that although the Tweet was “unpleasant” and “unsavoury” it did not pass the threshold required for “grossly offensive” under the Act.

Such reasoning is sound; taking away the national hero aspect of the case, the Tweet was perhaps worse than “unpleasant” but the harm caused by it was limited; can it really be described as indecent, obscene or menacing? After all, the key individual that the Tweet concerned had sadly passed away, so it had no impact on him individually. Instead, the court heard from various members of the public who saw the Tweet, who all reported that they were hurt at reading the message. One witness remarked that the effect of the Tweet was that if an individual had known anybody who fought for their country, then the comment “left a bad taste”.

It is hard to escape the conclusion that the prosecution and – even more remarkably, conviction – came about because of the timing of the message and the popular clamour for action to be taken. It is difficult, otherwise, to reconcile with the thousands, if not millions of abusive messages sent via social media each day. Much of the content that we have seen in recent years online goes far beyond such Tweets – we often deal with online abuse so grave that it takes a toll on the individual personally, and action under s.127 of the Communications Act has been reserved for the most egregious breaches; perhaps due to lack of time and resources.

There have been incidents where harassing messages and communications have led to self-harm, suicide, inciting violence; the list goes on, and yet this is the point at which the criminal system chose to intervene, against the backdrop of a national hero’s death. If this is the standard for grossly offensive messages that are of an obscene or menacing character, is it not time for an equivalent civil jurisdiction? If the courts are happy to rule that such Tweets attract liability, then an ordinary individual who suffers similar abuse should be able to enforce their rights without relying on the under-resourced and underfunded Procurator Fiscal Service. In the meantime they quite rightly will face an appeal over this Tweet.