Harmful electronic communications and dangerous power-crazed governments....

“Sticks and stones may break your bones but names will never hurt you” was a childhood chant but whilst the advice was clear enough – just to shrug of silly insults – those in authority never had such broad or forgiving shoulders. They might also generally lack a sense of humour

Thus the use of words, - written or spoken – has led many millions world-wide to miserable “judicial” deaths or extreme punishments.

The allied tool of censorship has become the established means of control of soothsayers, political pundits, dissenters, liberal thinkers and reformers over the centuries.

Presumably it was always thus – but the appearance of the latest troublesome monster called “Google” has those in power across the world reaching for their armories of legal antidotes.

Now the whole world’s populations can potentially communicate their thoughts and aspirations to each other and that does not suit governments or those who exercise the power of “control”.

Such “freedom of speech and expression” has, so it seems, to be restricted.

It is an instinctive reaction – like trying to swat an annoying but otherwise harmless, insect….

It was the same when Caxton printing machines first appeared, when women dared to appear in plays on stage, “Oz” magazine was judged subversive, Lady Chatterley’s Lover obscene, Beatles’ songs unsuitable for broadcasting by the BBC and the words of “proscribed Irish activists” could only be mimed on TV screens ….

When Jersey’s first printed newspaper appeared towards the end of the 18th century, the editor Matthieu Alexandre was almost immediately arrested and prosecuted for “libel” for daring to criticize members of the all powerful but totally corrupt “Royal Court”.

He was financially ruined and ceased publishing for some time.

Now in Jersey we are told that it was the former) Attorney General who initiated the latest attempt to curtail “free speech” under cover of a need to legislate against “Harmful Electronic Communications” aka Google and friends.

Matthieu Alexandre would know full well the implications of the latest proposed law since it carries a punishment scale of 2 years in prison and an unlimited fine for those convicted besides restraining orders which are to be mysteriously interlinked to other, existing criminal law sanctions too.

And, as in Matthieu’s day, it will be the AG who decides who will be prosecuted and what level of punishment should be sought in Court.

Except, so it was revealed at the recent Scrutiny hearing, the “bar” will be set so high with evidential and “public interest” tests so onerous that prosecution will be almost impossible to justify in any cases. And of course the degree of any “offence caused“cannot be measured or defined and complaints can be made “by any 3rd party” against “any comment posted”….and nobody knows what “a reasonable person might find offensive” whilst the interpretation of “grossly offensive” is constantly changing.

Much of the case law will be derived from the UK where “contrary to the basic concepts of decency in society” is often applied but how might such a test be applied in Jersey - especially since the Jersey AG reserves the ultimate power to ignore such precedents and standards when he chooses?

There are no existing codes of practice available locally and no plan to introduce them – either for the guidance of the public or police, so these latest powers will remain vague in the public mind.

Proving Intent will be a particular hurdle – how can “mens rea” be substantiated in court if the accused denies harmful intent or even awareness of the offence or claims it “was not offensive to me”?

Many of those supposedly most at risk of being harmed – or causing harm – will be too young to face prosecution in the Courts of Jersey but supposedly (so it was claimed) be asked to appear at a Parish Hall Inquiry.

Such proceedings will inevitably be secret and even if cases did reach Juvenile Court, the names of those involved and the details of the alleged offences would be largely secret too.

Thus knowledge of the procedures and standards that are applied will not generally become public. Awareness will not be thus promoted.

It was suggested during the Scrutiny hearing (by Deputy Johnson, the lawyer on the Scrutiny Panel) that teaching awareness to children might make it easier to prosecute them if and when they transgress this law since they could not then claim lack of awareness of the offence….hardly a standard which lawyers and others apply to themselves of course!

In fact, it was also alleged that about 3% of the general public have “claimed” to be offended by postings that could fall under this legislation.

The basis of such research was not clarified and it is presumably unlikely that many such instances would ever lead to a prosecution under this or any similar law whilst there are already perfectly adequate remedies under existing laws and several prosecutions have taken place in Jersey.

Especially noted was the now famous prosecution and conviction of a person who tweeted about a planned explosion at Robin Hood Airport (under similar legislation in the UK).

That conviction was overturned on third appeal (the Twitter Joke Trial) when the Judge decided in 2012 that it was all just a joke and there was no harmful intent.

In this case there had been an enormous public protest against the conviction but the heavy handed Yorkshire Police had insisted on proceeding even after the Airport Security has dismissed the incident as not credible and the date mentioned for the explosion was already passed.

Mr. Chambers, aged 28 was eventually charged with an incident “that was of grossly offensive or indecent, obscene or menacing character.” His house was of course searched and all computers etc confiscated in line with usual policing practice.

He was found guilty and fined with costs and lost his job.

Comedian Stephen Fry offered to pay his fine and expenses and even the CPS wanted to drop the case at first appeal but the Director of the Prosecution Service (the equivalent of the AG in Jersey) resisted to the bitter end.

Alluded to at the Jersey Scrutiny hearing, though not fully explained, was the hidden agenda of International Obligations and in particular those arising from the “Istanbul Convention” of the Council of Europe which is primarily concerned with combating gender based domestic violence, especially against women.

One member of the Panel referred to having attended a CPA (Commonwealth) conference where questions arose about Jersey’s international compliance (or lack of it) and it is clear that much pressure is being applied “behind the scenes” for Jersey to step into line with the UK, which has its own international responsibilities for such territories as Jersey.

The UK signed the Convention in 2012 but has not yet “ratified” it so that it does not yet have full affect within its territories.

Jersey has not signed up for the Istanbul Convention but the Home Affairs Minister has claimed that this is intended, when possible so to do.

However, the Istanbul Convention has been introduced by the Council of Europe as a stop gap measure which reflects some of the protections established under the UN Convention for the Elimination of Discrimination against Women” (CEDAW).

The Council of Europe (CoE) convention includes a specific monitoring mechanism GREVID which will presumably have powers to visit and inspect in Jersey.

A similar mechanism was activated under the CoE Convention regarding Torture which placed obligations upon the UK government and resulted in critical visits to the Jersey Prison and several reforms followed.

CEDAW has been ratified by most countries in the world (including the UK) and is a most important international convention – but it has not been ratified for Jersey.

It is a disgraceful omission.

In the meantime, Jersey has to appear to be complying with its requirements so far as preventing domestic violence is concerned. This is presumably why the opportunity is being taken to revise the Crime (Disorderly conduct and Harassment) (J) Law 2008 and why it appears to be so closely linked to the “fight against cyber crime” although they are to a large extent, separate entities with distinctly differing purposes.

The UK government clearly wants the relevant boxes ticked so that it can duly report to the Council of Europe accordingly.

Possibly Jersey’s delay is causing difficulties for London.

As part of that revising process, the punishment under the 2008 law will be increased to 2 years in jail with unlimited fines for breaches of restraining orders.

This will be similar to the punishments available under cover of the proposed “cyber bullying” legislation now being considered.

At Scrutiny it was not made clear why the 2008 law was being modified or linked in this way to the “cyber bullying” proposals.

The Chief Minister (attending because his Assistant Minister Ozouf was absent due to illness) did not seem very fully briefed and he had not attended the States Assembly when the “cyber law” proposal was discussed.

His team, supported by the Home Affairs Minister, left much of the explanatory talking to the AG’s representative lawyer.

In fact the “team” (about 8 in total) might as well have stayed in their offices doing some useful work and let the AG’s representative do all the talking, since he so obviously enjoyed so doing.

Evident too was the lack of consultation on these matters and the very poor response or interest expressed by the public in the proposals on “harmful electronic communications” that gave the title to this Scrutiny Review.

The Home Affairs Minister did not raise the matter of the twitter comments posted during her prolonged absence from the States due to illness and no other local “cases” were discussed either.

It may or may not be that the expression of political views and comments on political personalities in Jersey has attracted an undue or inflated degree of critical attention over many years from those criticized.

But, Google and friends may just be stimulating a freedom of expression that has for too long been suppressed and inhibited.

As always, there will be some who will seek to curtail that freedom.