Grossly Offensive Facebook Messages: Free Expression or Criminal Act?

Azhar Ahmed: Guilty of posting a grossly offensive message about the death of British soldiers on Facebook: ‘The only reason he can express himself so freely is because soldiers died for his freedom'.

(Photo from Dewsbury Reporter)

There is something ironic about the conviction of 20 year old Azhar Ahmed at Kirklees Magistrates Court on Friday 14 September 2012.

He was convicted under s127(1)(a)Communications Act 2003, which provides:

‘a person is guilty of an offence if he sends 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 criminal message was posted by Ahmed on Facebook two days after six British soldiers were killed. His posting said:

‘People gassin about the deaths of Soldiers! What about the innocent familys who have been brutally killed. The women who have been raped. The children who have been sliced up! Your enemy’s were the Taliban not innocent harmful familys… All soldiers should DIE & go to HELL! THE LOWLIFE F****N SCUM! gotta problem. go cry at your soldiers grave and wish him hell because thats where he is going.’

District Judge Jane Goodwin said the posting was ‘derogatory, disrespectful and inflammatory’. Ahmed accepted in court that the message was ‘upsetting and very distressing’ but denied it was grossly offensive. Judge Goodwin disagreed, so Ahmed faces up to six months in prison or a large fine.

The message was originally reported to the police by Ashleigh Craig. Craig was quoted by The Sun as saying ‘The only reason he can express himself so freely is because soldiers died for his freedom'.

This gives rise to an undeniable irony: Ahmed could not, in fact, express himself freely because he was convicted. An expression which results in a criminal conviction is not a free expression.

In Britain we take great pride in the freedoms we enjoy. Craig is right in saying that the Armed Forces put their lives at risk to protect such freedoms.

Freedom of expression is rightly seen as a vital organ of democracy. The rationale is that people should be free to express their views and others should be free to disagree with them.

During Ahmed’s trial up to 30 English Defence League members protested outside the court. Some members also sat inside the court. 

Many British citizens deplore the message of extreme right-wing groups such as the EDL. But many also fiercely defend the right of such groups to freely express their message, whether it's by publishing leaflets or a website or staging a protest outside courtrooms. The EDL themselves cite one of their core objectives as being the protection of the right to freedom of expression.

So how does the importance Britain places in upholding the right to freedom of expression sit comfortably alongside Ahmed’s conviction?

Under the European Convention on Human Rights the right to freedom of expression (Article 10) can only be interfered with where the interference is:

‘necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

It is undeniable that Ahmed’s comments contained vulgar abuse. The timing of his posting - so soon after the deaths of the six soldiers – was extremely distasteful. Few would disagree with the Judge’s view that Ahmed’s comments were derogatory, disrespectful and inflammatory. But is it really necessary in a democratic society to criminalise such comments?

Trolling - ie the sending of grossly indecent messages to targeted individuals - often amounts to criminal behaviour because there is a specific victim who feels harassed or bullied. If Ahmed had sent the message to the families and friends of the recently bereaved he could hardly complain about his prosecution. But he did not. Of course it was possible that the families may have seen the posting. But should that be enough to brand someone a criminal?

If there is a problem with the criminalisation of such comments it is not a result of the judges verdict but a fault in the catch-all wording of the legislation. After all, the judge was surely entitled to find that the comments were ‘grossly offensive’ as required by s127(1)(a) Communications Act 2003.

This poses the question: is s123(1)(a) compatible with the right to freedom of expression which we, and our Armed Forces, rightfully seek to protect?