P19/2016



States of Jersey
14/6/2016
Debate on Proposition P19/2016

Speech of Deputy for St. Helier Russell Labey

11.1.2 Deputy R. Labey:

Of course this amendment to the law is borne out of good intentions, and there is nothing sinister in it. There is nothing sinister certainly in the aims here, they are very laudable, but it is a worry to me that there could be sinister consequences later on down the line for free speech.

There is a phrase or cliché attached to this Assembly sometimes that we sleepwalk into passing dodgy legislation, I do not know the exact words. I confess that I am one of the sleepwalkers thus far.

I know the Assistant Chief Minister is not going to be particularly happy with what I am saying and I did go to his first briefing on this and then this law left my consciousness for some reason and it has just come back into it over the last 24 hours. This morning I have been scribbling my concerns about it all morning down on this piece of paper, so I might be not particularly coherent. But I think there is a serious element of muddled thinking in the way that this law has been drawn up.

The glaring issue is the introduction of the mens rea concept alongside the reasonable test. It is fundamental that the mental intention of the perpetrator is understood in order to determine criminality. The issue of intent is usually understood by the public in terms of whether somebody is convicted of manslaughter or murder Under the new Article 51(2) and 51(3) the offence in Article 51(1) would only be committed if the sender knew or intended the message or post to be grossly offensive or of an indecent, obscene, or menacing character. If the perpetrator, for whatever reason, mentally challenged, what have you - even a professional pornographer - if the perpetrator for whatever reason does not consider the message offensive or menacing then no offence has occurred.

Then a catchall is added. Amazingly a message sender who does not consider that anything offensive or menacing has taken place is expected to additionally consider and determine whether a reasonable member of the public would be offended. This makes no sense at all. Why would the sender make such an assessment? Consider a range of photographs, for example, such as a provocative nude posing or sexual activity, or a kiss between 2 women or 2 men, perhaps on the occasion of their wedding. Whatever the reason for disseminating such a photo they would all have the potential for offending a reasonable member of the public. Meanwhile, the photo sender does not believe it is offensive or menacing but faces getting a criminal conviction because the reasonable member of the public is offended.

This is appallingly bad law. It is quite seriously something one might expect - and I know this is a cliché, and I know this is not what the Assistant Chief Minister is intending here - but it is something that you would find in totalitarian states of social engineering, Saudi Arabia, North Korea, Turkey, what have you.

Consider further where a complaint relates to a photo, say a schoolgirl allowed her boyfriend to take intimate or compromising pictures of her, the copyright in the photo remains with the photographer; it is the photographer's property. If someone is foolish enough to allow someone to take ownership of a private aspect of their life then they have to accept the potential consequences.

The Scrutiny Panel refers to police procedures and notes it does not have to be the victim of an offence who reports it or makes a complaint. Third parties can also do this. Thus the school girl's annoyed parent taking exception at the photos of their daughter being circulated amongst the ex-boyfriend's mates can initiate a police investigation. Is this appropriate? I would consider that the determination for investigation should be conditioned by the alleged victim, the schoolgirl. It is easy to estimate a response gap here between generations. The parents might be outraged whereas the schoolgirl, being the 10th or 11th or 12th person in the school to have intimate photos of her passed around on mobile phones, might have a “whatever” attitude, might have the attitude that it is best to just let it go rather than incite proceedings and risk the Barbra Streisand effect where of course it reaches a whole load more people than originally would have seen the thing.

But the parents of anyone else can initiate a prosecution because of them taking offence by it, it is their offence once removed, as it were. This is another element in the public interest element associated with the reasonable member of the public. The law is damaged by the intrusion of the public interest elements which are far too wide-ranging in potential interpretation.

The Scrutiny report concludes that free speech is unlikely to be affected. That is not a strong enough conclusion for me. I think we should consider the freedom of speech here with relation to this law and we should consider the bloggers.

Our political bloggers, citizen's media, whatever you want to call them, are a source of irritation sometimes to Members of this House, to Ministers, to authorities, Government, to any of us, and to the mainstream media or the accredited media. But the bloggers are a product of this Assembly and us all here and indeed how we are reported in the mainstream media. Rightly or wrongly, over the last decade or decade and a half, a perception grew among some section of our population that the Government was out of control and unaccountable and the media had gone native and were letting them off the hook. I am not alleging that this was true. I am saying that was a recognised perception.

So the citizen's media may have been naïve in the beginning, they may have sailed close to the wind or across it or what have you, and they may have made mistakes, but they did become trusted and relied upon by a section of our community, such that it is to the bloggers that whistle blowers eventually began to turn. The whistleblowers began to trust the bloggers more than they did taking their information to perhaps a States Member or to our recognised accredited media. So the bloggers begin to get a fair few scoops.

I do not want to go over old history and I am going to make this as brief as I can, but take the Barton report which was a report into how 3 police officers came to be facing a disciplinary action for their work in bugging that car. I think we are all cognisant of it. The result of that report, which was a private report, was not necessarily glowing for the members of the Law Officers' Department, and they might have preferred that that report never saw the light of day. But it did see the light of day because somebody was concerned enough to leak it to one of the bloggers who put it on their website and I think we are all better for having read that report, frankly, and they did a service to the public.

I worry that this law is going to - with its prison sentence and fines, the way that people can be offended and bring stuff in - if the Law Officers' Department were offended by that they could bring a prosecution presumably.

It is going to potentially have a chilling effect on our press, both the accredited ones who I have to say are performing really well at the moment I believe, confidence has been restored with our accredited media, it is doing really well. It is certainly doing much better than when I was part of it 25 or 30 years ago.

[Laughter]

So I am extremely worried that there is going to be an effect on freedom of speech, on investigative journalism.

I am also worried that the report proudly states that the police will be able to decide what constitutes offensive. The report also proudly states that the law does not even need a victim to make a complaint, third parties can do it. The report boasts that the law does not even need a third party to make a complaint; the police can decide to act of their own initiative.

As I say, do I think our police force or our authorities are going to misbehave because this law has been passed today? Of course I do not, I am not alleging that.

There is a lot of talk about future proofing in the Assistant Chief Minister's report and I think we have to be worried about what the consequences could be down the line in different circumstances.

I do not know whether we are sleepwalking into this one because I know the Assistant Chief Minister, because he is a hardworking diligent man, wants to get this to the Privy Council so we can get it on the statute books as quickly as possible before the summer break.

That might have something to do with the fact that I do not feel we are considering this and the implications of this deeply and strongly and widely and broadly enough.

It worries me greatly.


Full Hansard for day's session