Life in crime | The criminalisation of free speech has gone too far

Matthew Woods, a nineteen-year-old from Lancashire, decided to post a number of derogatory remarks on Facebook about two missing girls, April Jones and Madeleine McCann. He was recently sentenced to 12 weeks in custody for these 'sick jokes.' Newspapers reported that the same bench had earlier fined a man £100 for shouting racial abuse at a woman, who had pulled up in her car beside him at a junction.

Azhar Ahmed was fined £300 and sentenced to a Community Order for posting an offensive Facebook message following the deaths of six British soldiers. He wrote that British soldiers in Afghanistan 'should die and go to hell'

Both were prosecuted under the Communications Act 2003, which prohibits sending a 'message or other matter that is grossly offensive or of an indecent, obscene or menacing character'. The DPP is expected to issue guidelines following several cases in which substantial sentences have been imposed on people who have posted offensive remarks on social media websites.

There is a glaring disparity when one man goes to prison and the other receives only a fine. The only difference is the way the offensive remark was communicated. On this basis, direct speech merits a lesser punishment than the written word. The usual response to hearing an offensive or sick joke is to display your disgust by turning away and ignoring the comment; shunning the speaker and moving on quickly to safer conversational territory. Should we be more offended by the written word? Offensive language in the street, or pub can perhaps be mitigated on the grounds of impulsiveness, speaking without thinking. Is the same phenomenon prevalent in social media? Do we think before we tweet? Arguably, it takes longer to write a tweet than uttering an offensive remark in anger or haste. The idea of an individual sitting at home spilling poisonous bile onto the page and making the deliberate choice to publish may seem more blameworthy. We choose to post by the pressing of the button or the clicking of a mouse. Many of us will have experienced that feeling of hovering, hand poised over the computer, debating whether or not to post that tweet or message. Sometimes we change our minds, our inner voice warning us that it is open to misinterpretation, that we may regret what we are about to say. The post is instantaneous, once pressed, it is irrevocable.

Then there are those who are seeking that sort of reaction. Who would not stop to think, mull over or decide what they want to say. Those who are affected by mental illness and are unable to rationally decide what is and is not appropriate. Those who seek to prod, irritate and provoke. They are the internet age equivalent of the irritating boy at the back of the class, who makes crass jokes to the silent disgust of his classmates. Like everyone else in the world, they use the internet too. However, blameworthiness and moral revulsion are not the same as criminality.

There is a line between comments that may be hurtful, offensive and insulting and comments that ought to be criminalised. We ought to be slow to criminalise the exercise of free speech even if it is distasteful, ill-advised or just plain offensive. If the same sick joke was overheard in a classroom, would we call the police, have the boy handcuffed and taken into custody?

In his sentencing remarks, Chorley Magistrates' Court bench chairman Bill Hudson told Mr Woods: 'The words and references used to the current case in Wales and that of the missing girl in Portugal are nothing less than shocking, so much so that no right thinking person in society should have communicated to them such fear and distress.

'The reason for the sentence is the seriousness of the offence, the public outrage that has been caused ? and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.'

Where speech becomes a direct threat, displays racist overtones, calls for violent action, or is oppressive in it's frequency, then clearly the offending party has crossed the line. Matthew Woods' puerile remarks do not cross this threshold. We may not like it, we may be offended but custody ought to be reserved for those cases which merit it, not some sense of Victorian inspired outrage.

The Twitter joke trial marked a defining moment in how we deal with social media. When Paul Chambers tweeted a bad joke in questionable taste, the Administrative Court sensibly concluded: 'If the person or persons who receives or reads it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character.'

When faced with the online bully, the old playground saying springs to mind; Sticks and stones will break my bones but words will never hurt me. Perhaps we should keep this in mind and only criminalise actions rather than jokes in poor taste.