Tuesday, 6 April 2021

Seriously annoying tweets

The row over Section 59 of the Police, Crime, Sentencing and Courts Bill is reminiscent of a backwater pond that has lain undisturbed for years. Then someone decides to poke a stick in it and all manner of noxious fumes are released.

In this instance the pond is the common law offence of public nuisance. The stick that has disturbed it is the government’s proposal to replace the common law offence with a statutory codification. The noxious fume that has been released is the risk of criminalising legitimate public protest.

Section 59 would replace the common law public nuisance offence with a statutory equivalent. The new offence would consist of intentionally or recklessly causing serious harm, or a risk of serious harm, to the public or a section of the public. Such harm would include “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”. There would be a defence of reasonable excuse. “Serious annoyance”, in particular, has been criticised as overly broad.

Section 59 is situated in the Public Order part of the Bill: a collection of provisions about policing public demonstrations. But Section 59 is not limited to behaviour in the street. In impeccably technology-neutral fashion it would apply to any "act". Posting a tweet is as much an "act" as gluing oneself to the road.

Criticism of Section 59 has focused on its potential for affecting street protests. Little attention has been paid to 
online communications. How would “serious annoyance” translate from street to tweet? Is a seriously annoying tweet the same kind of thing as a seriously annoying street protest? Is the potential impact of the Section 59 offence greater, less or no different in the online rather than the physical environment? Spoiler alert: it is at least the same and probably greater. How much greater we can only guess at – reason enough to send Section 59 back to the drawing board.

Origin of Section 59

The official response to concerns about Section 59 is that there is nothing to see here: it merely implements the Law Commission’s 2015 recommendations for codification of the common law public nuisance offence. The Secretary of State for Justice during the Second Reading of the Bill described concerns about “annoyance” as a “canard” (see further below).

It does appear that the Law Commission’s recommendations excited no public controversy at the time. Its consultation paper attracted a total of 10 responses on the public nuisance offence, none of which opposed its overall proposals.

However, for at least two reasons things are not that simple. First, the Law Commission did not discuss how the offence might apply to public online communications. (For that matter it barely touched on real world protest, even though the common law offence had been deployed against "sit-down" demonstrations in the 1960s.)  Second, in recommending “serious annoyance” as a criterion it reformulated the common law offence in terms that, although intended to keep the statutory offence within clear bounds, may have the opposite result when applied to
online speech. It is hard to avoid the impression that the question of what “serious annoyance” might mean when transposed from street to tweet was not on the Law Commission’s radar. 

Before delving into those issues, some context is helpful. 

The Law Commission’s June 2015 report was the first product of a larger project to simplify the criminal law. The report recommended that the common law public nuisance offence should be replaced with a statutory codification. The statutory offence would differ in some respects from the common law offence. The mental element would be set at intention or recklessness rather than negligence. The statutory offence would have to prescribe a maximum penalty. The Law Commission made no recommendation as to that, other than to observe that the maximum sentence should reflect that the offence was intended to address serious cases for which other offences were not adequate. The Policing Bill proposes a maximum custodial sentence of 10 years.

The Law Commission’s proposals sat on the shelf for the best part of six years. Why the government has chosen this moment to blow the dust off them and poke a stick in the pond is a matter of speculation. Whatever the reason, the government has done it and now people are reading the wording of Section 59. They see “serious annoyance” and question how that wording would apply to street demonstrations. Equally, we can ask how it would apply to online behaviour.

The Law Commission did not consider online communications

Neither the 2015 Law Commission Report nor its preceding consultation paper addressed how the codified offence, including the “serious annoyance” language, might apply to public online communications such as social media posts. The common law offence was certainly capable of doing so, as the Law Commission later acknowledged in its 2018 Scoping Report on Abusive and Offensive Online Communications.

This extract from the 2015 Report illustrates how far removed the Law Commission’s focus was from online speech:
“In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.”
For whatever reason, the 2015 Report paid little attention to the possible effect of the public nuisance offence on freedom of expression, whether offline or online. It did note that its proposed reasonableness defence “would include cases where the defendant’s conduct is in exercise of a right under Article 10 (freedom of expression) or 11 (freedom of assembly and association) of the European Convention on Human Rights.”

But it added in a footnote: “It is somewhat difficult to imagine examples in which this point arises in connection with public nuisance.” This comment is not easy to understand in the online context, where any application of the offence to an online post is likely to engage Article 10. Use of the common law offence against sit-down demonstrations in the 1960s also seems pertinent.

Over-vigorous application of a statutory offence might be greeted in similar terms to those employed by the Lord Chief Justice in the Twitter Joke Trial case (Chambers v DPP), an appeal from conviction under s.127 of the Communications Act 2003:
“The 2003 Act did not create some newly minted interference with the first of President Roosevelt's essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.”
But when we are considering conversion of public nuisance into a statutory offence, is it enough to hope that what on the face of it looks like overly broad language (with concomitant chilling effects on speech) would be rescued by the ECHR?

The Law Commission’s reformulation 

The common law offence, as endorsed in 2005 in the leading House of Lords case of Rimmington, is articulated in terms of "endangering the comfort of the public". The Law Commission described that terminology as "somewhat archaic", "wide and vague" in everyday language, which "could include very trivial reasons for displeasure". It proposed instead: "serious distress, annoyance, inconvenience or loss of amenity". In Section 59 this is rendered as “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.

The Law Commission evidently considered that by recommending a change in language from "endangering the comfort of the public" to "serious annoyance" it was narrowing the potential scope of the offence. It certainly intended to exclude the possibility of catching trivial displeasure.

Yet, when applied to pure speech, the reformulation seems less constraining than the original. "Comfort" could be taken to connote a physical or sensory element that is not a requirement for "annoyance": consider the disruptive effect on the public of a hoax bomb threat, compared with public reaction to the contents of an offensive tweet. 

Back to Blackstone?

If "annoyance" is a well understood term in relation to the common law offence, might that provide a basis on which to interpret Section 59 narrowly? 
Blackstone referred to "nuisances that are an annoyance to all the King’s subjects". 

In the 1700s public nuisance concerned environmental and public health misdeeds such as "noisome and offensive stinks and smells", polluting the Thames, or taking a child infected with smallpox through a public street. 

Whilst those readily fit the description of annoyances, how would that read across to speech? Can we even conceptualise a foul-smelling tweet? A noxious vapour and an obnoxious tweet are categorically different, one impinging on the senses and the other on the mind. Yet under Section 59 the courts would be asked to apply the same statutory language to both. The one context does not provide a guide to the other.

As the Law Commission observed in its 2015 Report, the common law offence has expanded from those roots to cover such diverse behaviour as plotting to switch off the lights at a football match, threatening suicide by jumping from bridges, hosting acid house parties, hanging from bridges, jumping into a river during a boat race, sniffing glue in public, lighting flares or fireworks at football matches, or recording videos threatening bombings – what it called "general public misbehaviour".

As the common law offence has developed since Blackstone to cover a greater variety of misbehaviour, correspondingly greater caution has to be exercised over the language used to characterise the elements of the offence.

Did the Law Commission mean to include online communications?

If the Law Commission did not in its 2015 Report specifically consider the impact of its recommendations on online communications, might that be because the statutory offence was not intended to apply to them?

As a largely technical exercise in codification, a proposed statutory offence would be expected to mirror the scope of the common law offence unless explicitly stated otherwise.

As to the common law offence, Lord Nicholls in Rimmington posed the example of a hoax message of the existence of a public danger, such as a bomb in a railway station, communicated by telephone. That, he said, even if communicated to one person alone, would be a public nuisance because it was intended to be passed on to users of the railway station. If a message communicated in that way can be a public nuisance, then all the more so a tweet published directly to the world.

If there were any doubt about that, the Law Commission acknowledged in its 2018 Scoping Report on Abusive and Offensive Online Communications that the common law offence is already capable of applying to public social media posts. The Law Commission identified overlap with, for instance, existing statutory harassment and communications offences.

The 2015 Law Commission Report discussed the Rimmington judgment in detail. It did not suggest that misbehaviour covered by its proposed statutory offence should exclude electronic communications. The technology-neutral approach of Section 59 is no accident, even if the consequences for social media and internet communications were not discussed.

Would Section 59 be used against online behaviour?

The 2018 Law Commission Scoping Report observed: “Given the wide array of statutory offences covering online harassment, it is difficult to see public nuisance being justifiably used in favour of these other offences in cases of online harassment and stalking.”

It noted that the common law offence was “very broad in scope”. While acknowledging that the public nuisance offence could cover online behaviour, the Law Commission said that it was not aware of any prosecution. Nor does 
the Crown Prosecution Service social media prosecution guidance mention public nuisance. 

None of that, however, means that the same would hold true once the public nuisance offence is given statutory force. 

The Law Commission’s observation about justifiability of prosecution of the common law offence rests on the primacy given to statutory offences. As the Law Commission explained in its 2015 Report, there is a presumption against using a common law offence where the same territory is covered by a statutory offence. That falls away once the public nuisance offence itself becomes statutory.

More fundamentally, there
 is nothing like a statutory codification to bring a common law offence back to full life and vigour. Language embedded in a statute gains strength from the fact that it represents the explicit will of the legislature. No longer is the court incrementally developing a common law offence within the bounds of reasonable foreseeability in order to accommodate changing activities. For a statutory offence its task is to interpret specific words to which Parliament has expressly agreed. Once written down in a statute, words tend to take on a life of their own. The broader they are, the greater the potential for them to do so. 

Prosecutorial guidance

The Law Commission suggested that the effect of removing the presumption could be mitigated by development of prosecutorial guidance, which could state that the offence should not be used when a more specific offence is available except for good reasons. Prosecutorial discretion, however, is no substitute for an appropriately drawn offence. Where speech is concerned, reliance on prosecutorial discretion is apt to produce the kind of uncertainty that gives rise to a chilling effect on freedom of expression.

Even if relying on prosecutorial discretion to mitigate an over-broad offence were an acceptable way of proceeding in the past, for online speech it now has harmful consequences that do not apply offline. Why so? Because when online intermediaries (such as web hosts, discussion forums and social media platforms) are incentivised (or even, come the proposed Online Safety Bill, obliged on pain of regulatory sanctions) to remove illegal content, the test of illegality is not whether a prosecutor would decide to bring charges. It is whether the content falls within the letter of the statute. It matters more than ever before that the language of a statute should clearly and precisely catch only what it ought to catch and nothing more.

The canard of annoyance

The Secretary of State for Justice Robert Buckland, during the Bill’s Commons Second Reading, suggested that concern about the term annoyance was a “canard”. He prayed in aid the authority of Lord Bingham:
“The law had been restated with reference to the use of the word “annoyance” by none other than the late and noble Lord Bingham when he was in the House of Lords. He set out the law very clearly. Clause 59 amounts to no more than a reiteration of the excellent work of the Law Commission. To say anything else is, frankly, once again a confection, a concoction and a twisting of the reality.”
This presumably was a reference to Lord Bingham’s speech in Rimmington. Lord Bingham concluded that the common law public nuisance offence, interpreted in the way that he specified, passed the legality test:
“A legal adviser asked to give his opinion in advance would ascertain whether the act or omission contemplated was likely to inflict significant injury on a substantial section of the public exercising their ordinary rights as such: if so, an obvious risk of causing a public nuisance would be apparent; if not, not."
Did Lord Bingham intend "significant injury" to include "serious annoyance"? The critical passage in his speech is at paragraph 36:
“I would for my part accept that the offence as defined by Stephen, as defined in Archbold (save for the reference to morals), as enacted in the Commonwealth codes quoted above and as applied in the cases (other than R v Soul 70 Cr App R 295) referred to in paras 13 to 22 above is clear, precise, adequately defined and based on a discernible rational principle.”
The offence as defined by Stephen was quoted by Lord Bingham at para 10 of his speech. It does not include "annoyance". In paragraphs 9 and 10 he quoted the offence as defined in different editions of Archbold. Again there is no mention of "annoyance". He went on in paragraph 11 to examine the Commonwealth codes of Canada, Queensland and Tasmania. None of those mentions "annoyance". At paragraphs 13 to 22 of his speech he reviews numerous cases. None of the passages from judgments that he quotes mentions "annoyance".

“Annoyance” was, however, mentioned in the two authorities that Lord Bingham quoted in paragraph 8 of his speech: Hawkins Pleas of the Crown (1716) Blackstone’s Commentaries (1768). Lord Bingham omitted both of those from the critical passage quoted above, endorsing only Stephen and Archbold.

That leaves the reference in paragraph 10 of Lord Bingham’s speech to Section 268 of the Indian Penal Code of 1860. That Commonwealth provision includes the phrase "common injury, danger or annoyance". Lord Bingham commented that it seemed likely that the draftsman of that provision intended to summarise the English common law on public nuisance "as then understood". 

Whatever may have been the position in 1860, today there is every reason to doubt whether the expression “serious annoyance” captures either the common law offence as it currently applies, or the statutory offence as it ought to apply, to public online communications.

[7 April 2021. Added “Commonwealth” to penultimate paragraph.] 

Sunday, 7 February 2021

Corrosion-proofing the UK’s intermediary liability protections

The UK having now cut its direct ties with EU law, what does its future hold for the intermediary liability protections in Articles 12 to 15 of the Electronic Commerce Directive?

Until recently, the government’s policy has been taken to be as stated in its 2019 “eCommerce Directive guidance for businesses if there’s no Brexit deal”:

“Immediately following the UK’s exit from the EU in a no deal scenario, the government will minimise disruption by prioritising continuity and stability. Therefore the UK’s policy approach will continue to align with the provisions contained in the Directive, including those on liability of intermediary service providers and general monitoring.”

Consistently with that, in October 2020 the government published post-transition guidance, stating that it "has no current plans to change the UK’s intermediary liability regime or its approach to prohibition on general monitoring requirements".

Articles 12 to 14 provide limitations on the liability of conduits, caches and hosts for unlawful user information. Article 15 prohibits EU member states from imposing general monitoring obligations on those intermediaries. Whether and how long the government’s commitment to Articles 12 to 15 would survive was an open question. With nothing said in the UK-EU Trade and Co-Operation Agreement about online intermediary liability, there appeared to be nothing to prevent the government – should it wish to depart from its previous policy – from legislating in future contrary to Articles 12 to 15 - subject always to the possibility of a legal objection on fundamental rights grounds.

There was a detectable drift away from the overt commitment to Article 15 with the publication of the government’s Full Consultation Response to the Online Harms White Paper, published on 15 December 2020. The Response strayed into proposing proactive monitoring obligations that could not readily be reconciled with that policy. That drift was also evident in the simultaneously published Interim Voluntary Codes of Practice on Terrorism, and Online Child Sexual Exploitation and Abuse, which are in effect a template for obligations likely to be imposed under the future Online Safety Bill. The Full Response was silent on the apparent conflict with Article 15.

Now, the government has dropped its commitment to maintain alignment with Article 15. A new version of its post-Brexit eCommerce Directive guidance, published on 18 January 2021, says this:

“The eCommerce Directive also contains provisions relating to intermediary liability and prohibitions against imposing general monitoring obligations.

The government is committed to upholding the liability protections now that the transition period has ended. For companies that host user-generated content on their online services, there will continue to be a ‘notice and take down’ regime where the platform must remove illegal content that they become aware of or risk incurring liability.

The government also intends to introduce a new Online Safety regulatory framework. This will require companies to take action to keep their users safe, including with regard to illegal content. Details on what this will mean for companies are set out in the Online Harms White Paper: Full government response to the consultation, and the government plans to introduce legislation to Parliament this year.”

Notably, although a commitment to preserving some kind of hosting protection remains, there is now silence on preserving the prohibition on general monitoring obligations. The significance of this omission can hardly be overstated.

Legislation that takes conscious bites out of the Directive’s protections is one thing. But there is also a more subtle threat. Active maintenance of the statute book will be needed if the liability protections to which the government appears to be committed are not to be corroded by simple neglect. The Article 12 to 14 protections for conduit, caching and hosting activities are potentially liable to erode over time as the statute book is augmented and amended.

The reason for this lies partly in the horizontal nature of the protections. They are not tailored specifically to copyright, to defamation, to obscenity, or to any of the other myriad kinds of criminal and civil liability that might be incurred online.  Articles 12 to 14 are shields that apply across the board, whatever the subject matter of the liability.

The risk of erosion lies in the way in which successive governments have gone about legislating those protections. When the ECommerce Directive was first implemented in UK law, the 2002 Regulations enacted the Art 12 to 14 liability protections across the board: they applied to all existing laws under which liability within scope of the Directive might be incurred (except for financial services, for which the protections were legislated separately).

But, crucially, the 2002 Regulations stated that they did not have prospective effect. This meant that they applied only to legislation in existence when they came into force. On every occasion thereafter that a new criminal offence or civil wrong was created, or an existing one amended, the protections required by Arts 12 to 14 had to be specifically enacted for that offence or civil wrong. Administrative Guidance on Consistency of Future Legislation issued at the time by the Department of Trade and Industry stated:

“Legislators will need to give careful consideration to the question of whether any new requirements - again, whether in primary, secondary or tertiary legislation and whether reserved or devolved- create any offences which (or the aiding or abetting of which) could possibly be committed by a mere conduit, cache or host within the meanings of Regulations 17-19. If so, they will need to ensure that they recognise these limitations on the liability of intermediary service providers. Similar considerations will apply to any form of civil liability created by any new requirements.”

In an ideal world, this would have been done within the primary legislation that created the new or amended liability. Sometimes that happened. We can, for instance, see the conduit, caching and hosting protections included in Schedule 1 of the Hate Crime and Public Order (Scotland) Bill currently making its way through the Scottish Parliament. Sometimes, however, it was overlooked and the omission had to be remedied separately. Since the protections were required by an EU Directive, the necessary provisions could be enacted pre-Brexit by secondary legislation under the European Communities Act 1972. This was done on around 15 occasions, in addition to regulations implementing the protections for the financial services sector.

The result is a veritable hodgepodge of primary and secondary legislation enacted over the best part of 20 years, implementing – not always using the same language – the intermediary protections required by Articles 12 to 14 of the Directive. At my last count, in addition to the 2002 Regulations themselves there were over 30 separate subject matter-specific implementations dotted around different primary and secondary legislation – and I may well not have found them all.

Post-Brexit, the option of plugging gaps via European Communities Act is no longer available. There will therefore be a greater premium on ensuring that, as in the Scottish Hate Crime Bill,  the protections are included in the relevant legislation itself. If active scrutiny and maintenance are neglected, and the requisite protections are omitted from future legislation that creates new offences and civil liability, there will be a slow accretion of liabilities and offences to which the Directive’s conduit, caching and hosting protections do not apply. 

If an omission has to be remedied, it would (unless some usable order-making power that I have not spotted is buried somewhere in the Brexit legislation) have to be done by further primary legislation. 

There is one potential qualification to this analysis. Could “Retained EU law” under the 2018 Withdrawal Act give the Directive itself a degree of post-Brexit prospective effect? If so, could the Directive’s liability protections be invoked against a future offence created by post-Brexit legislation which has omitted to address the liability position of conduits, hosts and caches? I do not pretend to know the answer to that, other than noting that the 2002 DTI Administrative Guidance was in no doubt that the liability provisions of the Directive had direct effect:

“If legislators fail to address such issues or fail to make proper provisions, the Directive will have direct effect in prohibiting them from imposing liability.”

However, any potential retention of direct effect would not offer any assistance in civil liability cases, since direct effect of Directives has been limited to the state, and not extended horizontally to affect rights as between private parties. For the Directive's intermediary liability protections the CJEU held as such in Papasavvas (C-291/13).   

[Amended 8 and 10 Feb 2021 to add reference to October 2020 government guidance; and 9 March 2021 to add reference to Papasavvas.]