Hayden's latest debacle

Guest post by Kate Roxburgh

Can “being mildly rude on the internet” be a criminal offence?

For Kate Scottow, the answer to that was, at least for a time “yes, it can”. She was convicted on 7th February 2020 at St Alban’s Magistrates’ Court of a summary-only offence contrary to s127(2)(c)of the Communications Act 2003, namely the persistent use of a public electronic network “for the purpose of causing annoyance, inconvenience or needless anxiety to another.”

The Facts

Scottow was prosecuted for comments she made on Twitter about Stephanie Hayden, a transgender woman and self-styled activist in the “women’s rights vs transgender rights” debate (a debate which rages fiercely in certain corners of Twitter). Scottow’s comments were, to be fair, not complimentary: in one, she said of Hayden

“This person is not a racist, xenophobic, larping lawyer/transwoman. This person is a crook using the trans façade to ensure they aren’t caught. A pig in a wig.”

The majority of the comments were made about, not to, Ms Hayden; Scottow did not tag her into the tweets (this, for non-twitterati, is a means of ensuring the tagged person sees the tweet); and at the time of some of them, she had in fact blocked Ms Hayden from seeing anything she posted. Essentially, she was talking behind Hayden’s back. Hayden was only able to see these tweets by creating a new, non-blocked identity and actively going looking for them (confirming the old adage that “eavesdroppers rarely hear anything good about themselves").

Nonetheless, in late 2018 Hayden went to the police, alleging harassment as a result of these tweets. Scottow was arrested (apparently in front of her children, held at the police station for several hours and interviewed. She was released under investigation, and nothing happened for several months (which is absolutely par for the course in criminal proceedings). During this time Hayden obtained a wide-ranging civil injunction preventing Scottow from publishing personal information about Hayden, “misgendering” her on social media, referring to her previous male identity or implying that she was racist.

Then in March 2019, Scottow (using a new Twitter identity) had a conversation online with Hayden about the injunction. Hayden was initially unaware that Scottow was behind the new identity, and made no objection to the comments (which were argumentative but not insulting). On learning the identity of the user, however, she reported these comments to the police as well as further evidence of harassment . Scottow was interviewed for a second time, and this time was charged with the s127(2)(c) offence.

The Offence

It’s worth considering the hierarchy of harm implicit in s127. It begins with s127(1), which makes it an offence to send messages via a public electronic communications network that are grossly offensive, indecent, obscene or menacing. Then it moves down to s127(2)(a) and (b), which deal with sending or causing to be sent messages which are untrue. Last, and surely least, comes s127(2)(c): persistently using the network to cause annoyance, inconvenience or needless anxiety.

It is perhaps surprising to find that there is, it seems, a criminal offence of causing “inconvenience”, or indeed “annoyance;” it is a lower bar than we might ordinarily expect for criminal liability. Furthermore, those familiar with Twitter may feel that it is a platform rarely used for anything other than the causing of annoyance. If this is indeed the law, and were it generally applied, it would be a rare and extraordinarily courteous Twitter user who would retain their good character.

The Trial

Kate Scottow did not, at first instance, retain hers (although this is the story of her successful appeal; she’s got her good character back now). She was convicted after trial, the District Judge commenting:

“Article 10 rights [to freedom of expression] are not unfettered…I do not find your communications to be part of a debate, they are merely personal comments aimed at Ms Hayden….. There should be no restriction on proper debate, but I do not find that what you did was in furtherance of any debate.”

She referred to comments made by Scottow as

“simply unkind and abusive….Not part of a debate, it was abuse for the sake of it… A comment which Ms Hayden found distressing, and forms no part of any debate.”

And she added (in an admonition much discussed on Twitter thereafter):

“We teach our children to be kind…..and there is no reason why, simply because something is on social media, we should not follow that rule as adults.”

Really? asked the aforementioned corner of Twitter, loudly and perhaps not unreasonably, following the conviction. Can it seriously be a criminal offence to be “unkind” on Twitter? Can “personal comments” become a criminal matter, if they are made via a public electronic network (such as Twitter)? Do they have to be, as the District Judge clearly implied, part of a “proper debate” to be lawful?

The Appeal

This was, in essence, the question before the High Court on 10th December, when they considered the appeal by way of case stated (an appeal at which the court doesn’t re-consider the evidence, but looks at the previous judge’s decision to see if it makes sense). The constitution of the Court suggests it is one they took seriously: the case was heard by 2 judges, Bean LJ and Warby J. The latter has special knowledge of the matters raised, being the judge in charge of the High Court’s specialist Media and Communications list. (It may also be of relevance that Ms Hayden is something of a serial litigant; the High Court had just days earlier refused a claim by her for an injunction, claiming harassment by someone else: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2020/3291.html&query=(title:(+hayden+)))

There was in fact a whole separate issue in the appeal as well as that question: the Court found, on the specific facts of this case, that the 2018 tweets were not part of a “course of conduct" with the 2019 tweets, and so (they not having been charged as a separate offence within the 6-month time limit for summary matters) the 2018 tweets fell away. Essentially, the prosecution had lumped together two lots of tweets and called them one lot, in order to get round the fact that they’d missed the time limit on the first lot; and the High Court said sorry, no, not having that. That meant that the trial should have been about the 2019 tweets only, and they just weren’t enough for a conviction on any view. So in fact the appeal would have succeeded on that point alone, and never mind any free speech issues.

However, the Court went on to consider the free speech issues anyway — the “being rude on Twitter” question. Which is just as well, because this is the part that applies to all social media users.

The “being rude on Twitter” question

Warby J observed that the s127(2)(c) offence seemed to have been represented by the prosecution as:

“a lesser version of harassment, with a less demanding threshold — a kind of ‘harassment-lite,’ in which it was enough to prove an intent to cause offence.”

That, he said, is not the law. What, in that case, is it? He went on to say:

“These provisions were not intended by Parliament to criminalise forms of expression, the content of which is no more than annoying or inconvenient in nature….I do not consider that the mischief aimed at by Parliament when it passed s127 of the 2003 Act was as broad as causing offence online.”

He made the following observations about the correct reading of the section:

The causing of annoyance/inconvenience/anxiety must be the purpose of the communication; not, as in the Malicious Communications Act, “one of the purposes.” Thus, where (as here) tweets are not sent to or tagged to the Complainant (ie in this case Hayden), and the Complainant is blocked, these are facts which will be relevant; after all, if your purpose is to cause annoyance/inconvenience/anxiety, wouldn’t the normal course of action be to send the tweets directly to the Complainant? The District Judge at trial had said airily that the issue of tagging andblocking “does not have much bearing.” You must have known, she told Scottow, that Hayden would track them down somehow (and then been upset by them). The High Court was not impressed by this line of reasoning; maybe Scottow did know that, maybe she didn’t — but in any event, “foreseeability is not to be equated with purpose.”

It is the element of persistence itself which must cause the annoyance/inconvenience/anxiety, rather than the content of the communication; so for instance “prank calls, silent calls, heavy breathing and other forms of nuisance call” would fall within the section — and indeed are “the kind of behaviour that I consider the legislature intended to prohibit by enacting this offence.” (Though note that this does not mean the content is necessarily irrelevant).

Where the content of the communications is before the court as causing annoyance etc, the Court must have in mind the Article 10 right to freedom of expression, and the Court’s duty under s3 of the Human Rights Act, to read and give effect to primary legislation in a way that is compatible with Convention rights. This had not happened in the Scottow trial: “The Prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend…The Judge appears to have considered that a criminal conviction was merited for acts of unkindness, and calling others names.”

In reference to the fact that, in her sentencing remarks, the District Judge had clearly attached considerable importance to her finding that Scottow’s comments did not form part of a ‘proper debate,’ Bean LJ commented laconically:

“It is not the law that individuals are only allowed to make personal remarks about others online if they do so as part of a ‘proper debate’.”

“In short,” he concludes, in words that will be welcomed by Twitter users across England and Wales:

“I do not consider that under s127(2)(c) there is an offence of posting annoying tweets.”

Appeal granted, conviction overturned.