Harassment Laws & Free Speech II

I do not want to rehash a scene which has already been forensically examined over at Spiderplant Land.

BUT SOME OF THE LAWS IN THIS COUNTRY ARE FRICKIN' CRAZY!

@Sir_Olly_C, a blogger, who holds his local council to firm account was arrested, charged under the Communications Act 2003 and the Protection from Harassment Act 1997 and, before even being found guilty, was slapped with a restraining order.

Welcome to free speech in 21st century Britain.

I have previously made my thoughts very clear about how the harassment laws in this country are designed to stifle free speech. It seems now that these laws are being used to their fullest effect. I suspect that Parliament did not intend for these laws to be used in the way that they are. Genuine criticism must never be stifled or interfered with.

If the Communications Act 2003 is going to be used to stifle freedom of speech based upon the level of offence that a person feels then perhaps more politicians should be locked up? I am frequently offended by the lies and the way that they treat their constituents with utter disregard.

I am not seriously promoting a policy of widespread committals here, but if a persons level of offence is all that is needed to bring a crap case to court then we are heading for a very depressing period in British history. 

The situation is quite clear and the battle lines are being drawn; if you criticise a person or an organisation, however legitimately, you are going to be on the end of these anarchic laws. Mark my words, more people will become aware of the legislation which enables them to close down dissent and with harsh repercussions for the "offender".

Support @Sir_Olly_C any way you can. Retweet using the #FreeTheBexleyOne hashtag and lets hope more people get behind him.

Media: The Independent

http://www.independent.co.uk/arts-entertainment/books/news/author-chris-mcgrath-faces-six-figure-legal-bill-after-unfavourable-amazon-reviews-case-is-struck-out-7618976.html

This is an article by Jerome Taylor of the Independent. I have disputed the accuracy of the report on a couple of points but it is, by and large, a fair summary of the case.

----------------------------------------------------------

"An author who tried to sue a father of three from the West Midlands over comments made in a series of unfavourable reviews on Amazon is facing a six figure legal bill after a judge struck out his case.

Chris McGrath, an online entrepreneur from Milton Keynes, tried to sue Vaughan Jones, 28, from Nuneaton, over a series of reviews and postings he made on the Amazon website about his self-published and little-known book “The Attempted Murder of God”.

Amazon, the prominent evolutionary biologist Richard Dawkins and his eponymous foundation were also named as defendants because they either carried the review or discussion threads linked to it that Mr McGrath claimed were libellous.

The four defendants applied to have the case thrown out with proceedings coming to the High Court late last year. The judgement has now been made available to the public. In it Judge Maloney dismissed the case against Amazon, Richard Dawkins and his foundation whilst throwing out the vast majority of the case against Mr Jones. Mr McGrath will now face legal bills of around £100,000.

The judge ruled that although a small portion of Mr Jones’ words might be deemed libellous by a jury if it went to a full trial, there was little point pursuing that avenue because the potential damages would be slight compared to court costs and time.

The judge also questioned whether Mr McGrath, a married father of two, might have trouble convincing a jury that he had been wronged because of his own online behaviour. During proceedings it emerged that the author had used a number of online pseudonyms to review his self-published book and come to his defence once people began to criticise his work.

Mr McGrath’s book – which he described as a satirical parody of the often fractious debate between science and reason – was initially published anonymously under the pen name “Scrooby”. It came to the attention of Mr Jones in September 2010 when multiple links to Mr McGrath’s work began appearing under reviews for “The Grand Design”, a popular science book by Stephen Hawking and Leonard Mlodinow which argued that God is not necessary to explain the origins of the universe.

Mr Jones wrote a series of uncomplimentary reviews of “The Attempted Murder of God” and, after doing online research, outed Mr McGrath as the author. He also named Mr McGrath’s two children, something Judge Maloney described as “nasty”. Increasingly hostile replies went back and forth between Mr Jones, Mr McGrath and Mr McGrath’s online pseudonyms – the content of which became subject to libel proceedings.

Libel reform campaigners, who have expressed concern that Britain’s defamation laws disproportionately favour claimants, said last night that the case should not have got to the preliminary hearing stage.

Michael Harris, from Index on Censorship, said: “We want the government to ensure that libel actions cannot proceed unless the harm caused is both “serious” and “substantial”. We’re concerned that it cost Amazon £77,000 to have this case struck out by a judge, an amount of money that most ordinary libel defendants simply cannot afford. Change to our archaic libel laws cannot come soon enough.”

In a statement provided to The Independent, Mr McGrath said he intended to appeal against the strike out ruling and proceed to a full libel trial. “There are many legal bases for believing this judgement is deeply flawed and we have until 30 April 2012 to challenge the decision to ban us from appealing,” he said.

He rounded on libel reform campaigners, stating that British law had made it all but impossible for litigants in person such as himself to successfully bring a libel case. He also defended his use of online pseudonyms stating that he was “trying to pull off a complicated satire” at the time.

“There are artistic reasons that are not unethical, to use fake review accounts and, in sudden defence of a serious attack, it seems eminently reasonable to reach for whatever resources there are available to protect family, name and reputation,” he said.

In an attempt to bring proceedings to a close, Mr Jones has agreed not to repeat any of the sentences that the judge ruled might be deemed libellous by a jury.

“I did win my strike out application, no question,” he said. “But when you consider the case as a whole, no-one has won here really. And that's why, I suspect, libel reform is needed more than ever.”

----------------------------------------------------------

Points of dispute:

1) The costs that the Claimant faces is £75,000 as agreed by a costs order at the end of the hearing

2) The Judge, at no material time, ever used the word "nasty". There were four persons taking notes of the two day hearing including myself. In response to a comment by my barrister that "there was nothing illegal about Mr Jones expressing sympathy for the Claimant's children based on his behaviour" the Judge said "Yes but it wasn't nice".

3) The Judge stated, first and foremost, that the range of defences likely to be used meant that the question of whether words were libellous was not fit for trial and that the cost in discovering what are, on the face, statutory defences, was not worth the time and money. The actual question of damage only arises once the defences are considered. In this case, I would argue that the defences demonstrated that whatever would be left would not be fit for trial.

The Judge was clear that there were was no instance, in his deliberations, where he could suggest that either parties case could conceivably succeed at trial. However, libel law is weighted in favour of the Claimant. When a strike out is applied for, this weighing increases because it is assumed that they are in the right from the start. It is, therefore, an uphill task for a Defendant to defend a libel claim let alone file a strike out.

The fact that the strike out was successful, considering that perspective alone, should speak volumes about the merits of the Claimant's case.

4) The Claimant was not "banned" from making an appeal. The Judge made it more than clear that permission was denied verbally and that the Claimant had to revert to the proper process of filing an application. To file an appeal with the the High Court costs £235 for the Permission to Appeal application and then £465 for the hearing thereafter. The Court, already subsidising the process according to a recent report, does not need to forgo £235. Therefore there is no "ban" on filing an application at all. The Claimant has not been added to a Vexatious Litigant list.

5) I'm actually 29 now. A year closer to my third decade.

As for the Claimant's justifications for his behaviour as quoted in the article? I simply don't care right now to be honest. The Judgment considers the excuses/reasons given for the Claimant's conduct and there is no reason, right now, to go beyond that.

Libel Case: Result

On the 30th March 2012 Judge Moloney handed down Judgment in the libel case I was involved in.

The Judge found in favour of the Defendants who were successful in their application to strike out the claim.

Since December 2011 I have been the subject of what one might call a hate campaign. Various twitter accounts and web pages have been set up to smear my character by the Claimant in this case. Many of these smears have been sent to various organisations, MP's, notable celebrities, supporters and organisers of Libel Reform, my own friends and family and other twitter users.

I can now report that in December 2011 all parties in the case were sent the draft Judgment which, under the Contempt of Court Act 1984, bound us not to reveal either the result of the case or the content of the Judgment itself.

Mr McGrath knew in December 2011 that he had lost and knew that he was facing a large costs order.

I cannot, and will not, make any assumptions about Mr McGrath's state of mind nor infer that he took the decision to smear me as a result of knowing the decision. I will let the facts of the matter stand for scrutiny and people may make their own mind up.

The case was struck out. 60 pages of allegations and argument was narrowed down, by a Master of the Court, to 16 pages. This was then narrowed down to 4 or 5 sentences which the Judge found 'could' be libellous but for which I had available defences to.

The Judge decided it was not worth a trial to hear the case and asked that, in light of this, whether I would be willing to agree not to repeat those sentences (or the meaning implied) in the future to bring an end to the case.

I have, at this stage, agreed to do so to bring an end to the proceedings. It was not worth increasing costs, time and stress if it could be brought to a quicker conclusion. I have a wife and two young children who need a husband and Father around the place.

When the Judgment is published, people will see that 90/95% of the case was struck out because of the Judge's own interpretation of the facts and there is no question that this is a victory on a number of levels which I will explain in due course. But, for example, the Judge ruled is not defamatory to call someone a Creationist. For those who debate religion and atheism this is quite an important finding by the High Court.

The claimant now has to pay £75,000 in costs (within 3 months), was denied permission to appeal and failed in an attempt to have me committed to prison for "contempt of court". Of course my sympathy is with the claimant's family who I'm sure do not deserve to be placed in the situation they are now in.

It is also certain that this is not quite over for the claimant as he has stated his intention to file a written application for permission to appeal. I will deal with that as and when I need to because an application for permission to appeal then needs to turn into a successful one. At that stage an appeal needs to be filed and then perhaps the story may take another twist before the end of the year.

But, in short...

Thank you to...

Robert Dougans, Serena Cooke, Jonathan Price, Trevor Gill, Neil Porter, Hardeep Singh, David Burton, Janet Murtha, David Allen Green, Simon Singh, Ron Lewis, Unity MOT, Maria Wolters, Gareth Winchester, John Gray, Kris King, Paul Tilley, Popehat, Darren Flynn, Abigail Amey, Mike Harris at Index on Censorship and the hundreds of people from both the atheist and religious communities who have sent me messages of support throughout this process.

My family also deserve some thanks for putting up with me rabbiting on about the case and hopefully they will see not only how serious it all was but how someone was able to stand up to a libel bully. Without their support I would have found this much harder. The only trouble is, I will now be around much more to annoy them about other things.

Harassment Laws & Free Speech

This is a short opinion piece on the end of free speech and why I believe that the current interpretation of the laws governing how people conduct themselves is completely wrong. I know because I'm on the end of what I perceive is a miscarriage of justice or, at the very least, an abuse of police power in terms of how they investigate allegations of harassment.

Free speech is a very strange thing to quantify. Is it something which needs restricting for fear of causing offence? Is it the way in which something is said? Can it be made worse by the way in which the information is presented or distributed? I argue that in the last instance, free speech is very easy to close down and without anyone knowing about it.

But what is free speech as a principle? Let's start with the HRA 1998.

Human Rights

Article 19 of the Universal Declaration of Human Rights states:

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Using this rule alone, discounting all laws in any other country, people would be allowed to distribute child pornography. No rational person would ever reasonably suggest that Article 19 should not be subject to a limitation. For example, a person seeking to distribute or receive child pornography could well say that their "free speech" rights are being denied were an authority to intervene in this information exchange. This does not mean that there is not a legitimate reason for this denial subject to the laws the authority is invested with upholding. There could well be a society which decides the dissemination of child pornography was a legitimate activity. On those lines Article 19 would be a true beacon for the "anything goes" crowd. But thankfully we do not live in a society which finds child pornography acceptable.

As a general principle then, free speech is the right to hold and impart information free from authority except where that information creates a criminal liability or civil tort. That is, people can still impart information that could be considered criminal but should expect to face a sanction if an authority hears about it.

The Right of Privacy & criticism of public figures

This is something quite contentious in view of the Leveson Inquiry and I might come under a little fire for suggesting that not everyone has an automatic right to privacy. Individuals leading private lives should be protected for that position where their private life does not become "overtly public". But what does this mean? Well I think it means someone who deliberately opens up a part of their life for public consumption or commits a crime against the state.

I concede that this is not a perfect argument.

For example, a person could win the lottery. This is newsworthy but the actual "win" is accidental in the sense that the mathematics are staggeringly high. No-one really expects to win the lottery. They therefore have a right to decide whether to make this public despite deliberately taking a course of action which would potentially lead to a newsworthy event. A counter example is a person who accidentally crashes into another car through losing concentration and commits manslaughter. This is a crime against the state but they did not set out to deliberately make their actions worthy of public consumption. Nevertheless they do not have the right to decide whether this information becomes public consumption.

The Right of Privacy tends to be relaxed to some extent when it comes to the discussion of public figures or, rather, there is more leniency. There is a general expectation that should someone private suddenly become more "public" that they have given up some right of privacy. I have conducted some research into this and my conclusion is that this should relate mainly to the activity in which that person has become a public figure in.

If a footballer has a crap game, I would expect a reporter to write about that. I would not expect a reporter to comment on the player's crap game and then follow his comments with a diatribe on the player's personal life unless it was reasonably judged to be affecting his performance. For example player A plays crap on a Saturday but was photographed falling out of a pub the previous Friday night. At the same time, a player who takes his child swimming on a Friday afternoon and then plays crap on a Saturday should not face the same accusation because he has a right to a family life. I think, were the situation tested reasonably, this would be a logical position to take.

Similarly if an author writes a book they should be judged on their work. If they write their own reviews they end up suffering the fate of having their conduct evaluated. The most prominent case which comes to mind is that of Orlando Figes who trashed his rival authors using fake accounts. When rumbled he claimed it was his wife who wrote them before finally conceding it was him all along. That he is a prominent Professor in the field of History and employed at the UCL makes the tale even more woeful. But he has received his criticism and whilst initially reacting badly to the issue, by threatening legal proceedings via a law firm, he has gone back to his day job and is producing good work again. There was no need for his tale to be prolonged of course. The media did what was proportionate at the time. The issue is now, for the time, forgotten. News moves on quickly to the next headline.

But Professor Figes brought it upon himself with his actions. He deserved the criticism not just because he had set up those fake accounts but also because he was in the public eye and expected to behave himself in his chosen field.

Harassment Laws, Abuse of:

If I said that we are heading into a police state where freedom of speech is concerned I would be denounced as a crank by people who think that the term "police state" is synonymous with any flavour of conspiracy theory you like to think of.

What I shall do is present some evidence I have found and then let people judge for themselves.

The Protection from Harassment Act 1997 (PHA 1997) exists as a bulwark to unwanted intrusion into people's private lives. The law states:

1 Prohibition of harassment.

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

The problem is that people can find themselves on the end of this law should they be subject to a complaint from any person who argues that they are being harassed. I do not have a problem with people complaining that they are harassed. Far from it.

What I do have a problem with is how this law has been interpreted and the wide range of police powers that can be used to cause people accused of harassment a significant deal of harm.

The Current Situation (a case scenario)

Mr A complains to the police about Mr B because he alleges that he is being harassed. The dispute is over a garden fence being in the wrong place. Mr B has been writing letters asking Mr A to move the fence 4 inches so that when he comes to sell his house there is no problem with the border. Mr B expressed in his letters that he was unhappy with trees growing over into his property and that if they continued to do so, he would remove the offending branches himself.


Because Mr B was contacting Mr A by letter, the police can issue something called a Police Information Notice. It's official title is a Prevention of Harassment Letter: Form 9993 and it looks like this:

Form 9993

Mr A felt under threat because he received 3 letters in the course of 4 months. Mr B felt his conduct was reasonable because he was trying to sell his house and needed a resolution without going to court to settle the matter which would have been expensive for both parties. As a means of resolution, the letters were the best option because they were not on speaking terms.

However, because of the complaint the police were able to dispose of the complaint quickly, efficiently and, in what seems to be a complete contravention of the rule of innocent until proven guilty we expect in a civilised society, are able to issue this form and record information which affects Mr B for a minimum of 7 years.

The border dispute was eventually settled between Mr A and Mr B via court action. Mr B won his case and it cost them both around £3000. But Mr B won because the dispute was obvious. He moved house and thought he had moved on.

However, Mr B is a teacher of English. He needs to complete an enhanced CRB every 2 years. It comes up for renewal months after he has moved house. The headteacher of the school he works at asks him into the office to discuss his CRB. The headteacher points out that there is information which has been added to the CRB stating that he was given an official warning. The content simply states that Mr B was sending letters of harassment and was given a warning. The headteacher was unhappy that Mr B, being a teacher of English, could allow himself to be compromised despite a perfect record at the school. His explanation is accepted but the information is leaked to the rest of the school staff accidentally. Mr B feels under constant scrutiny to prove himself and cannot focus on his job because of the gossip. He eventually leaves his job, unable to cope with the pressure.

He feels like a criminal. He feels branded. He feels like there has been a miscarriage of justice. The complaint details and the associated paperwork will be retained for 7 years. But the information will remain on his record until he reaches 100 years of age. Any future careers involving the need for an Enhanced CRB will automatically flag this information and he will need to explain it time and time again.

This is a case scenario. But it has happened. It is based in reality. All I have changed is the profession of Mr B.

I have not included details of the police investigation. That's because there was none. There never needed to be any under the legislation (or rather, the interpretation of the legislation). And I shall explain why.
Interpretation & Guidance

The guidance for police officers when investigating claims of harassment is found here and the CPS have also published some information which is quite useful to the layman.

A most effective tool

Tool is the wrong word perhaps?. Weapon is far more accurate I think but this sounds a little too aggressive. In any event using the police to close down free speech is a very effective method with documents like Form 9993 at their disposal. There does not need to be an admission of guilt. There does not need to be a thorough investigation. There does not even need to be any concrete evidence that a person accused is actually guilty of any alleged crime.

Form 9993 exists only to warn a person that their conduct "might" be indicative of harassment. But it's effects on the person accused is chilling and it can have dire effects on that person's career, especially where an enhanced CRB is required.

The police is, in effect, Judge, Jury and Executioner. This is far too much power for one group of people. The CPS exist for a reason. They do not get everything right. But an harassment warning can be issued with perhaps one or two people deciding on that outcome.

I won't repeat the officers name but I was told on the phone that the harassment warning would not affect a person's chances of gaining a career in a certain area of employment. I doubt that this officer lives in the real world. If person X has a practically identical CV to person Y, and all other things were equal, but person X has this harassment warning on their record, who do you think would be most employable?

The argument from the officer was a terrible one which also offered me a glimpse into their world. The harassment warning exists only as a way to close down a crime report quickly and with some sort of tick in the box. The dismissive nature of the officer's aside that a person's career won't be affected was very arrogant and disregarded how information recorded by the police and then made available to employers has a real world impact on a person's life.

The other point that should be made on why it is an abuse of power is that an harassment warning cannot be appealed.

Conviction Rates - a worrying upward trend?

Since being introduced, convictions using section 2 of the PHA 1997 has seen a remarkable upward trend:

It's difficult to get information about how 9993 forms are issued, their number etc. But someone had a go over on the WhatDoTheyKnow website which handles Freedom of Information requests.


The horrible truth

The FOI request, responded to on the 23rd May 2011, contained some remarkable admissions by the officer in charge of collating the information. Here is just one:

"This form is issued in allegations of harassment that do not reach the evidential standards for charging."

So, in other words, someone can make a complaint about you of which can contain little to no evidence at all but this can be recorded on your CRB, disclosed to your employer (current or prospective), university or indeed anyone who requires an enhanced disclosure.

If I was questioned about any other crime (to my knowledge) that I am alleged to have taken part in but there is no evidence, or certainly not enough to secure a conviction, then that is the end of the matter. Nothing is recorded, nothing is disclosed and nothing is filed which impugns your character.

Form 9993 disposes with the notion that a persons is innocent until proven guilty. By recording the information and making it public, it is you who would have to explain it away for the rest of your life. You do not even need to be arrested. You cannot even appeal the decision.

Emma Norton of the Liberty Clinic wrote in the Guardian that:

"It has been suggested by some that harassment warnings are an all-too-convenient option for the police, as they require little or no investigation and can be dealt with quickly and cheaply and they have no awkward rights of appeal attached. If people are concerned about the circumstances in which they have been given a harassment warning, they should consider lodging a formal complaint and/or seeking prompt legal advice."

In other words, Form 9993 is the Happy Meal of Police powers; it's unfussy, pleasing to the profit makers, kids tend to accept one without questioning how it will affect them in the future and parents dole them out knowing they are full of crap. Form 9993 is doled out as a quick resolution to a police complaint allowing an officer to close down a case pleasing the powers above, people accept them because they do not know the full effects (because the Police do not have to explain what effect they may have) but they know full well the grief that they could potentially cause.

No right of appeal. 21st century Britain. And it has blurred the lines between civil and criminal complaints in a disheartening way.

Read this piece by George Monbiot http://www.guardian.co.uk/commentisfree/2009/feb/05/anti-stalking-liberty-central. An extract reads:

"The law creates an offence of pursuing "a course of conduct which amounts to harassment of another". Harassment is defined as "alarming the person or causing the person distress". The act can be used to impose injunctions on people, criminalising their previously lawful activities. As the injunctions use civil law to create criminal offences, they require a much lower standard of proof: hearsay evidence and untested and unproven allegations can be used to criminalise any action the police or the courts wish to stop."

Why am I writing this?

I want to change this law or, rather, the interpretation of it. It is a draconian piece of legislation which passed through Parliament without any real thought it seems. There are genuine cases of harassment of which I am sure. But let's try a thought experiment.

Is it legal to create a website criticising an individual?

I think it should be. Should you harass an individual with this information you have written about them in direct messages and contacting their friends. family, journalists and MPs? I'm pretty sure that would amount to harassment. For if a website is created, no-one forces you to go there to look at it. It's like walking onto a knife that someone is holding. They are not murdering you for goodness sake. But contacting someone repeatedly with this information and then their friends etc is tantamount to infringing their private life and creating a genuine annoyance.

What about if someone sends you an email out of the blue on April Fool's Day? Is this harassment? No. It's not. What if you reply to this email in a civil manner? Is this harassment? No.

What about if you reply to that email in a civil manner on 3 occasions asking for more information about what was contained in the original email sent to you? Is this harassment?. No.

What about if you are ignored throughout the day and you finally reply with a sort of "fuck off" and leave me alone type response. Well bearing in mind you could have been subjected to an April Fool's Day prank then no. What about a sarcastic response?

This is not unreasonable and it cannot be harassment.

If you send someone an email threatening legal action, you should not be surprised if they tell you where to go but especially on April Fool's Day. In any event, a reply should not be considered harassment if you are responding to an unsolicited email.

It shouldn't be an offence to insult someone but the current legislation blurs this line between a civil and criminal act. This is not fair. It's not reasonable. It needs fighting.

Religion, criticism of

Another reason I am writing this is because it reflects on a person's ability to criticise religion. Martyn Saunders-Rawlings, a former member of Hastings and Bexhill Jewish Society, had protested against a council decision to lease a building to an evangelical group at a reduced rate and with an annual grant.

After writing two letters raising his objections to the building, he was given a Form 9993.

There is an imperative for this situation to be reversed. We do not know how many people have been given these warnings because they are recorded in a different way. And who wants to own up to having this on their record? More importantly, how many people know that this warning exists on their file waiting to be revealed?

Ideas

I would appreciate some ideas on how to change this situation. Lawful protest, in all forms, is mainly under threat. I'm thinking an online petition is a good way to highlight this issue or perhaps try and link with the Index on Censorship to see if we can come up with ways to drum up support.

Links

Here are some Freedom of Information requests, case law and other links which might be of interest:

ttp://www.met.police.uk/foi/pdfs/disclosure_2011/march/2011020001767.pdf

http://www.met.police.uk/foi/pdfs/disclosure_2010/december/2010110002478.pdf

http://en.wikipedia.org/wiki/R_%28on_the_application_of_L%29_v_Commissioner_of_Police_of_the_Metropolis

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/1999/732.html&query=

http://www.homeoffice.gov.uk/publications/about-us/consultations/police-powers/

http://www.hampshire.police.uk/NR/rdonlyres/1C97440D-2990-424B-B560-FD980F20CBD5/0/12901.pdf