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Offensive Jokes Becoming Criminal? Count Dankula's Conviction

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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If you don't believe in a person's right to say things that you might find 'grossly offensive', then you don't believe in Freedom of Speech.

Ricky Gervais

A recent conviction has sparked furious debates all over the political spectrum as to the magnitude of the right to freedom of expression, the place that context should play in the court, and the extent to which an intended joke can be deemed criminally offensive.

Mark Meechan, otherwise known by his online moniker ‘Count Dankula’, was convicted on 20 March 2018 for the improper use of a public electronic communications network, contrary to Section 127 of the Communications Act 2003 (CA 2003). Meechan was sentenced to pay an £800 fine on 23 April 2018 and has since confirmed that he intends to appeal the judgment. However, on 7 August 2018 Dankula uploaded a video to his Youtube channel in which he confirmed that his appeal had been rejected.

The trial arose following a video uploaded to YouTube by Meechan in April 2016 entitled ‘M8 Yer Dugs a Nazi’. The video consisted of Meechan demonstrating that he had trained his dog to respond excitedly when asked ‘Do you want to gas the Jews?’ and to give a ‘Nazi salute’ (raise his paw) when told ‘Sieg Hail’. In addition, the video showed the dog attentively watching Hitler’s 1936 Berlin Olympic Games rally and ended with an edited image of the dog with a Hitler moustache.

Meechan alleged that the video was meant entirely as a joke to be seen only by a select group of people, that there was no anti-Semitic or hate-inciting intention behind it, and that the court was considering it out of context. However, Sheriff Derek O’Carroll rejected these claims, finding that the video was ‘grossly offensive’ and thus fell afoul of Section 127 of the CA 2003.

This article contends that Meechan’s conviction and later rejected appeal are wholly unsatisfactory, arguing that the offence set out in the legislation fails to appreciate the importance of context and is outdated in the modern age.

Section 127 and Meechan’s Conviction

Section 127(1)(a) of the CA 2003, under which Meechan was convicted, states that a person is guilty of an offence if he:

[S]ends 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 …

The leading case on this provision is DPP v Collins [2006], in which Lord Bingham set out the two necessary elements of the offence which the prosecution must show:

  • The defendant must send a message that is ‘grossly offensive’. It does not matter whether the message is received or actually causes the recipient offence. In determining whether the message is ‘grossly offensive’, the court must ‘apply the standards of an open and just multi-racial society’ and the words of the message ‘must be judged taking account of their context and all relevant circumstances’.
  • The defendant must have intended the words of the message to be grossly offensive or be aware that the words might be taken to be so.

Unfortunately for Meechan, Sheriff O’Carroll held that both elements of the offence were satisfied in this case. Regarding the first requirement, the content of the video is clearly capable of being grossly offensive: as barrister and legal blogger Matthew Scott argues, if 'joking about gassing the Jews is not at least capable of being "grossly offensive" to some people it is hard to think of anything that would be'.

Likewise, the second requirement is clearly present. Despite Meechan's assertion that the video was a joke, this does not change the fact that he would have been aware that the video might be taken as grossly offensive; in fact, the shock value of the offensive words used in the video is most likely precisely the reason the video is deemed comedic by many. As Sheriff O’Carroll observed, Meechan actively ‘chose “Gas the Jews” as it was the most offensive phrase associated with the Nazi’s that he could think of’ and that ‘it was so extreme that it added to the comedy’.

Criticisms of the Conviction

The Necessity of Context

The most criticised aspect of Meechan’s conviction was Sheriff O'Carroll's rejection of the argument that the video should not be criminalised because its contents consisted of a joke. For example, Sheriff O'Carroll refused to treat as exculpatory Meechan’s statement at the beginning of the video that:

My girlfriend is always ranting and raving about how cute and adorable her wee dog is. And so I thought I would turn him into the least cute thing that I could think of, which is a Nazi.

In addition, Sheriff O'Carroll gave no significant credit to Meechan's comment at the end of the video, in which he said: ‘I’m not a racist, by the way. I just really, really wanted to piss [my girlfriend] off.’ Instead, it was decided that Meechan's claims that the video had been created for comic effect were of limited importance because, in the words of the Scottish Prosecutor (the Depute Fiscal):

[I]n a criminal court in Scotland [the defendant] does not decide the context of anything, the court decides the context.

The importance of context when considering an offence under Section 127 of the CA 2003 was made clear in Chambers v DPP [2012]. This case concerned the following message, tweeted by the defendant:

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!

Upon arrest, the defendant repeatedly asserted that the tweet was a joke and was not intended to be menacing. After being charged under Section 127 of the CA 2003 and convicted in the Crown Court, the defendant appealed to the High Court, where it was stated that:

The [Communications Act 2003] did not create some newly minted interference with… 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 subject to it should and no doubt will continue at their customary level, quite undiminished by this legislation.

This represents a judicial confirmation that Section 127 of the CA 2003 does not necessarily act as a bar on comedy and demonstrates the potential for context to play an important role in cases such as Meechan’s.

Nevertheless, the impact of this welcome pronouncement from the High Court is undermined by the wording of Section 127 of the CA 2003 itself: the requirement that the defendant needs simply to have been ‘aware that the words might be taken’ to be grossly offensive regrettably allows the intention behind the message in question to be disregarded. It was this element of the legislation that allowed the Depute Fiscal and Sheriff O'Carroll subsequently to conclude that ‘context and intent are irrelevant’.

This is not to argue that the decision made by Sheriff O'Carroll was wrong: technically, he was correct in holding that there was no defence based on Meechan's pleas that he intended the video to be a joke, as he still recognised that it could be considered grossly offensive. After all, the foresight of causing offence – which was present here – is all that is required for conviction. Sheriff O’Carroll was therefore correct to state that the description of the video as humorous was ‘no magic wand’.

However, it should be made clear that this is a highly undesirable state of affairs: instead of focusing on the intention of the defendant, the offence effectively places emphasis on whether someone is ultimately offended. This rolls out a legal lottery, such that the criminality of a person's actions are dependent on the sensitivities of those reading or watching the message.

The fact that this is the case is particularly concerning in the modern age. Determining whether an act is criminal by considering whether it is offensive is – in today's society - inexcusably self-fulfilling. As has been argued by Kenan Malik:

[I]n a plural world, the giving of offence is… inevitable… because where different beliefs are deeply held, clashes are unavoidable.

As a result, when a controversial video garners millions of views – as Meechan’s did  it is inevitable that someone somewhere will be offended by it. This inevitability of offence results in the current legislation considering all content that is merely capable of gross offence as being actually grossly offensive, regardless of the surrounding context.

For this reason, it is clear that Section 127 of the CA 2003 should be amended to remove the basic intent aspect of the mens rea, instead only finding liability where the main purpose behind the defendant’s message was to cause gross offence. Jokes would therefore not be deemed criminal unless they crossed into other outlawed territory, such as the incitement of violence or racial hatred. Whether the joke is funny or not would of course be completely irrelevant (not least because comedy is subjective) – what should matter is whether it was intended to be a joke.

Outdated Legislation in the Internet Age

A further notable criticism of Section 127 of the CA 2003 is that Parliament, instead of introducing a new offence to specifically target offensive content placed online in the wake of the rapid growth of the internet, was satisfied to simply amend pre-existing legislation. The result is that, even if Parliament insists on criminalising offensive content, its attempt to do so is ill-fitted for its purpose.

Indeed, Lord Bingham in Collins [2006] gave a brief explanation of the history of the current offence. He detailed how its genealogy can be traced back to Section 10(2)(a) of the Post Office (Amendment) Act 1935, which ‘made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character’. As the records in Hansard show, Lord Templemore explained to the House of Lords that the 1935 offence was enacted in order to protect the public from ‘improper or obscene language’ over the telephone or telegram.

This offence was then amended through the Post Office Act 1953Post Office Act 1969Telecommunications Act 1984, and – in an attempt to bring the offence into the internet age – the CA 2003. The law has therefore progressed from a statute which protects individuals from troubling phone calls to one that is intended to be applied in the modern world where content can be shared instantaneously with millions of people.

Before being taken down, the original ‘M8 Yer Dugs a Nazi’ video had over 3 million views – this is very different to a one-to-one phone call and any attempt to equivalate the two scenarios is inappropriate and misguided. For this reason, Meechan’s act seems to fall outside the purpose of the relevant legislation. As was correctly argued by Matthew Scott:

It is one thing to protect individuals from grossly offensive personal telephone calls; it is quite another to protect groups of people from what are in effect public performances.

Conclusion

It may be tempting to look at the fact that Meechan was only sentenced to pay an £800 fine and think that, all things considered, everything turned out okay. This should not be the case: a precedent has now been set that allows the courts and CPS to challenge and criminalise comedy and free speech through the use of an unnecessary, ill-fitting and outdated law.

Section 127 of the CA 2003 needs serious reconsideration by Parliament. Whether someone faces prison time should not be dependent on the sensitivities of a random person on the internet. The restriction of offensive content leads to unacceptable uncertainty: the CPS is able to pick and choose which content it deems criminally offensive and which it doesn’t.

Compare, for example, Meechan’s video and the ‘Are You Right There Father Ted?’ episode of the popular show Father Ted. Both focus on Nazism as a joke, and yet only the former has been subject to criminal proceedings, presumably because the latter is, on the whole, considered funnier and so any offence caused is generally excused.

Meechan indicated that he planned to appeal his conviction in order to ensure that 'we remove this precedent' as 'what happened to me... can [now] happen to anyone else and I wouldn't wish that on anyone'. Regardless of whether the video is funny or not, it would have been in society's best interests that his conviction be overturned. However, in light of the fact that it was not, Meechan’s case could indicate the beginning of quite a concerning path for the law to take.

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Tagged: Criminal Law, Human Rights, Justice, Media, Technology

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