We should not send people to prison for being offensive

From the Guardian yesterday:

A teenager who posted explicit comments and jokes about April Jones on his Facebook page has been jailed for 12 weeks. 

Matthew Woods, 19, from Chorley, Lancashire, made comments about April and Madeleine McCann, the three-year-old who went missing during a family holiday in Portugal in 2007. 

Woods was arrested for his own safety after about 50 people descended on his home. He pleaded guilty at Chorley magistrates court to sending by means of a public electronic communications network a message or other matter that is grossly offensive. The chairman of the bench, Bill Hudson, said Woods's comments were so "abhorrent" he deserved the longest sentence the court could hand down.

As John Kampfner says in the same newspaper today:

Direct incitement to violence is one thing. But we cannot and should not sentence people for bad jokes, poor taste and terrible manners. That is an issue for parents, teachers and, most importantly, peer groups.

And peer pressure is something that social media is very good at. Woods' actions were cruel and silly, but I am sure there are plenty of people who would have told him that. Perhaps the courts should have been more worried by the mob that pursued him?

As UK Human Rights Blog explains, Woods was convicted under Section 127 of the Communications Act 2003. (Thanks, Labour.) This prohibits a person sending ”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“.

In part this law reflects our masters' unease about social media. The first Guardian article I quoted above goes on to repeat some of Woods' jokes. As far as I know, neither of its authors has been arrested. Nor would you be arrested if you told those jokes to a friend in the pub. Online communication is different, it seems.

But there is something more fundamentally wrong with this law. It is that you can never know whether you have broken it or not.

We all tell black jokes from time to time. They appear after every tragedy or disaster - you could even argue they are part of our way of coping with such events. Certainly, the Forces and the emergency services, who have to deal with this sort of thing far more often than the rest of us, are noted for the dark shade of their humour.

When does it become acceptable to repeat such jokes online? I have no idea and no idea of how to find out.

The result is likely to be a cowing of British society. As Heresy Corner said when Paul Chambers was initially convicted in the Twitter joke trial:

What has been on trial is the possibility of humour itself, the right of a freeborn Englishman to be facetious as and when he feels like it, about any subject whatsoever. 

Against that age-old national instinct to make light of adverse circumstances - the spirit that got us through the Blitz - we now find a new and alien notion that there are some things that are beyond joking, that even an obvious joke must be treated seriously. Because it's no laughing matter. Because you can't be too careful. Because any imagined threat, however patently absurd, must be ritually investigated. 

And the person making the joke must bear the responsibility for the time-consuming and costly process of investigation, even though the possibility of such an investigation never crossed his mind, just to drive the message home that You Cannot Make Jokes About Terrorism.

It seems the list of things about which You Cannot Make Jokes is far wider than that.

But, of course, most people who repeat black jokes on Twitter or Facebook will not be prosecuted and imprisoned. It's just that you will never know that you definitely will not be.

It is an example of Calder's Second Law of Politics. And it also reminds me of a passage in Nick Cohen's You Can't Read This Book.

In that passage Cohen imagines a dictator talking to the chief of his secret police:

"You mean I should kill the leaders of the opposition?" 

"I will happily do so, Excellency, if you command it. But that's not the idea. You need to pick on slights and humiliations that are so small that they seem not to be humiliations at all, and punish them with unreasonable ferocity. Random violence creates the necessary conditions for order. A leader of the opposition expects us to arrest him from time to time, but a writer making a veiled criticism of your rule, or a man who grumbles about you in a shop queue, does not. By randomly attacking a few people who speak sedition, we tell many people that the only safe option is to avoid all talk about politics. The aim is to create a state where everyone knows it is best to say nothing, and the bastards shut up."