This article was originally published on the Invent Partners website.
The Honorable Jacqueline Davies
Dear Judge Jacqueline Davies,
Having witnessed for myself your dismissal of the half time motion and subsequent questioning of the evidence in the Paul Chambers appeal: what has now become known as the “Twitter Joke Trial”, it is abundantly clear to me that despite your earnest efforts to do so, you have not fully understood the nature of Twitter, its audience, or the underlying technology, and how this applies to the definition of a “public telecommunications network”. I feel that this is in part because you were not furnished with complete information before or during the trial. Furthermore, this ignorance has caused you to come to a conclusion about Paul Chambers’ intentions which is fundamentally flawed.
In my capacity as an internet professional, web developer and twitter user, I would like to explain one or two things to you which will hopefully help to make you better informed should such a case ever enter your court in future.
1] Twitter technology
Twitter cannot be said to be a messaging or communications system in the same way that telephones, email or SMS are. Messages are not “sent” to users, rather users subscribe to the service and post messages to the twitter service, these are then later retrieved by other users who also subscribe to the service and choose to receive the messages or “tweets” of selected users.
In this way, twitter is more akin to a wireless radio, in that users “tweets” are broadcasts, the twitter user is a radio station, and their “followers” are listeners. When a user signs up to twitter, they will make choices about whose tweets they choose to receive, based upon the user’s own tastes and preferences. Thus a person who is tweeting has a good idea of who their “audience” is, and what their mores and levels of offence will be. Similarly, a “follower” will know the people they follow reasonably well, and will have an understanding of what kind of language they use.
With this in mind, twitter could be more accurately regarded as a “broadcast medium” rather than a “telecommunications medium”.  Thus it falls into the definition of a “Content Service” as for the purposes of the Communications Act 2003, and defined as:
“Section 32 (7) (a)the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;”
In this defintion, twitter.com is the content provider, providing Paul Chambers’ tweets with a view them them being comprised in signals conveyed by means of an electronic communications network (the HTTP, REST or SOAP protocol over TCP/IP on the world wide web).
Section 32 (2) clearly states:
“In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.“
In this way, twitter cannot be defined as a “public telecommunications network” in any way recognisable by law.[/edit]
2] Types of message.
You asked very specific question about what types of post a twitter user can post. There are 3 distinct types:
a] Public timeline message
The is the default type of message, which is available to view by anybody who views the poster’s tweets. It is the core function and purpose of twitter, allowing one user to post a message which can be viewed by anybody else. It allows users to enter into a public dialog, with conversations taking place in the public domain. It was this type of message that Paul Chambers used to post the tweet which you have judged to be “menacing”
b] @ addressed messages
A message from user “pauljchambers” containing the text “@MattBluefoot” is publicly available to any reader, but is addressed to me. This allows both me as the recipient, and anybody else viewing the message, to see that the message was addressed to me. Much in the same way that one might address a question to one person in a courtroom, whilst accepting that others will hear the question, and may join in with that conversation. It was this kind of message that was used when Paul Chambers joked with @crazycolours about resorting to terrorism. The message was still in the public gaze and should have given context to his later tweets, to any user later happening upon his twitter posts.
c] d direct private messages
A message from user “pauljchambers” beginning with “d MattBluefoot” will be visible to me only as the recipient. It is a mechanism provided for the sake of convenience should one twitter user wish to discuss something quickly in private with another user, but it is really there purely for convenience, it isn’t in the purpose or nature of twitter for these messages to be commonplace. Indeed, in order for user [a] to message user [b] in this way, user [b] must already be following user [a], otherwise the message will not be accepted.
3] The public timeline
You asked why Paul Chambers chose to post this message to the public timeline. This is the default state of any twitter message, and there would be no reason why Paul Chambers would choose NOT to post the message in this way, unless he thought it was contentious or menacing in some way. The very fact that he posted it in the public timeline indicates very clear that he did NOT think the message was in any way contentious or open to menacing interpretation.
You discussed the idea of a hypothetical older couple, who were about to fly, visited twitter and saw this message. This demonstrates a lack of understanding of the twitter public timeline.
In much the way that radio has many stations, twitter has many thousands of users all posting tweets all the time. The twitter public timeline, to a non-subscriber, unfiltered, is the equivalent of listening to thousands of radios all tuned to different stations and all switched on at once. Whilst it is theoretically possible that somebody might do this, it is unreasonable to suggest that a twitter poster would consider this at all probable or likely when posting their tweet. To suggest that Paul Chambers would have or should have considered this a possibility when posting his tweet, is nonsensical. As Paul Chambers himself stated in evidence, tweets on the public timeline appear at such a rate that they are only visible on the twitter homepage for a fraction of a second. To locate a public timeline tweet such as Paul Chambers’ tweet, you would have to go searching for it by text pattern matching, just as the Robin Hood Airport manager did on this occasion.
Whilst it is possible that an elderly couple may accidentally tune into something which they find offensive whilst channel hopping on a radio, we do not require all radio stations to tailor their entire broadcast content to the lowest common denominator. Whilst we do have rules of taste and decency, we also as a society seek to protect the rights of broadcasters to use humour, hyperbole and robust language to an appropriate post-watershed audience. In the case of twitter, the likelihood of a user happening upon a tweet such as this by accident, is in a region of very low statistical probablity.
In fact, I would go further. To argue that the hypothetical older couple, on finding this message, would take it entirely seriously and not for one second consider that it was a joke, despite the fact that everybody else who has seen it has recognised it as such, is to insult the intelligence and critical capabilities of this hypothetical older couple. Not only have you invented a fictional couple who do not exist, you have cursed them with childlike levels of critical capability, and yet given them the ability to search a twitter feed, having never used the site before. This seems like a highly unlikely combination of attributes.
To suggest that a hyperbole or joke which makes reference to terrorism should always be regarded as menacing regardless of context, is a dangerous precedent to set.
4] Context and menace in a public broadcast medium
In 1938, CBS radio in the united states broadcast a dramatistion of H.G.Wells’ “War of the Worlds” voice in part by Orson Welles. The broadcast was in part presented as a series of fictionalised radio news bulletins. There were sensationalist accounts in the press about a supposed panic in response to the broadcast, although the precise extent of listener response has been debated. In the days following the adaptation, however, there was widespread outrage. Some listeners heard only a portion of the broadcast, and in the atmosphere of tension and anxiety just prior to World War II, took it to be a news broadcast. Newspapers reported that panic ensued, people fleeing the area, others thinking they could smell poison gas or could see flashes of lightning in the distance.
In your summary of the case, you indicated your belief that hyperbolic messages referring to terrorism should always be regarded as menacing in the current political climate. Were this to be applied universally, the broadcasts such as legendary 1938 War of the Worlds broadcast would never have been made in their “current climate” either. Clearly, it did to some extent “menace” a small number of US citizens.
Although this example is clearly not applicable to UK law, I use it as example of the kind of “content service” which the Communications Act 2003 seeks to protect.
Paul Chambers knew his audience, and they knew him. To suggest that he should restrict his language on the basis that somebody else might accidentally see it, is to restrict the communications and language of every free individual in this country, for fear that they might be criminalised by the state. On a day when we wore poppies to remember those who fought and died, and continue to fight and die to protect our basic freedom, the court’s judgement made a mockery of their efforts.
You spoke of the fear of terrorism in your judgement. I don’t wish to repeat the oft quoted words of many a fine speaker / writer on the subject of the impact of terrorism, but suffice it to say that I believe that the primary objective of terrorism is to create a climate of fear in the target.
Many people feel, I amongst them, that in handing down a criminal judgment to an innocent member of the public, on the basis that he should casually joke about committing a terrorist act in a conversation between friends, you have effectively handed the victory to the terrorists.
I now live in a country where anything I write on the internet, or speak out loud may become subject of a criminal case, regardless of my intentions, or my audience. This makes me feel more than a little menaced by the state. Who should I report this to?