I’m writing this waiting for Bob. I’ve been waiting for Bob since 27 August, which was when he first promised he’d turn up. Bob lied. He’s lied lots since 27 August about when he’s going to turn up, but every time he gives me a date I sit here transfixed with puppy-dog hope, glancing out of the window every so often, expectant. Bob is, of course, a builder. Or perhaps he isn’t a builder but one of those weird people who just pretends to do something on account of the sexual thrill such pretence gives them. It’s usually doctors and nurses but I can see no reason why such an affliction shouldn’t stretch to pretending to be a builder.

Anyway, if this were 2002 I’d go on his firm’s website and write something vicious and hateful about him, with maybe a veiled threat somewhere along the line. But since the Malicious Communications Act of 2003 I am worried that if I do such a thing the old bill will be around with an alacrity Bob could only dream of. We all need to be better acquainted with this act, because it isn’t only bourgeois home-owners who wish to harass tradesmen whom it has disempowered.

A palpable halfwit called Matthew Woods, from Lancashire, has been arrested for having posted some sort of offensive joke about April Jones, the little girl who went missing from Machynlleth, and also a joke about another missing girl, Madeleine McCann. Having read one or two of the things he posted I can confirm that they were deeply distasteful, and not funny, although mild by the standards of the internet. I don’t suppose we should worry too much about Mr Woods, who is now in prison, although my own view is that the comments of such trolls are better simply ignored rather than subjected to criminal proceedings.

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What worries me more about the Malicious Communications Act in its amended form is that it is increasingly used to prosecute those whose response to some national event or incident differs from the officially approved view of a supposedly righteous majority. In a certain loose sense, Matthew Woods’s inane comments fit this criterion. But it is also being used to stifle political dissent. A man called Olly Cromwell was arrested for being rude about Bexley councillors — according to the police, he had posted messages on a webpage ‘criticising them both on a personal level and the way the council is run (sic).’ During the summer, when we were all terribly gung-ho about the Olympic Games, the police were called in to prosecute a chap who had left an unpleasant message on the website of the young British diver, Tom Daley. The message, which followed Daley’s initial failure to win a medal read: ‘You let your dad down I hope you know that.’ Daley’s father had died the previous year.

So, unpleasant enough: but worthy of prosecution? The crucial part of the law —  Section 127 — states that it is a criminal offence to send by any ‘public electronic communications network a message that is grossly offensive or of an indecent, obscene or menacing character.’ Later in the Act this is expanded to involve anyone who sends a message which may cause ‘needless anxiety’. We are skating on thin ice here, surely? Needless anxiety is, to mangle the metaphor, in the eye of the beholder: it is not a matter of solid, provable, fact.

Simon Brown, now Lord Brown of Eaton-under-Heywood and a former justice of the Supreme Court, worried that the act had been so expanded from its original form that it was too readily applicable to too many things. The present Chief Justice, Lord Judge, for his part said in July this year: ‘Satirical or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters …even if distasteful to some or hurtful to those subjected to it should and no doubt will continue at their customary level.’

In other words, such stuff, he felt, was specifically excluded from the meaning of the act. This would be extremely reassuring were it true; or at least it is not a point of view which has been successfully inculcated into the minds of the police, the Crown Prosecution Service or indeed our magistrates. Indeed, the stuff which Lord Judge specifically excludes from the act seems to me precisely the sort of thing which does bring a very swift prosecution, fuelled by the hair-trigger outrage of the online masses and the hair-trigger sensitivity of the old bill. You might argue that Lord Judge’s interpretation seems to be of an act which should be on the statute books, rather than the one which presently is on the statute books.

Beyond the moronic inferno of the social networking sites, although inflamed by them, there does seem to be a certain feeling at large that one shouldn’t go against the grain on any contemporary issue and that to do so might lead one very swiftly into the courts. This mood was exemplified by some dismal executive at Channel 4 who told the world that Frankie Boyle wouldn’t be appearing on the network in the near future because some joke he’d made about the Paralympics was ‘not in keeping with the mood of the nation’. I think it would be useful if we had comedians, like Boyle, who are never in keeping with the mood of the nation and, indeed, ridicule the mood of the nation. And it would be nice if the rest of us could do the same thing without the risk of prosecution.

 

This article first appeared in the print edition of The Spectator magazine, dated