There have been signs that nothing has been learned from the prosecution of James McConnell.
The judge in the case, in which the pastor was taken to court under the Communications Act 2003, said some of the pastor’s comments would have been “easily capable” of being found “grossly offensive” (the satanic sections) if they had not been protected by human rights provisions relating to religious expression. The PPS cited the ruling to justify having tested the matter in court.
CPS guidelines and precedent rulings in relation to the act have tried to make clear that it should not cover comments which, however contemptible, are merely offensive. The McConnell affair, which should have come nowhere near a court, showed that politicians at Westminster need to tighten the act’s wording to ensure no similar case goes to trial again.
Now we have an MLA proposing an even more swingeing response to social media. Basil McCrea has tabled an amendment to legislation proposing that a person who shares a harmful electronic communication that (among other possibilities) causes “alarm, distress or injury including psychological harm” shall face up to 12 months in jail or a £5,000 fine.
This is absurd. We saw clearly in McConnell how widely the more explicit wording of “grossly offensive” can be interpreted. You can only imagine how a court might interpret “alarm”.
There are some valid topics raised in Mr McCrea’s proposals. For example, his provisions tackle communications that include the “sexually explicit content of another person”.
Revenge porn should indeed be a serious criminal offence. But the other provisions are too sweeping. Users of social media must learn that they cannot libel or abuse other people.
But there is an argument that even Phil Flanagan, who made a despicable slur on Tom Elliott (one that fits with a dishonest republican narrative), should not as an individual be subject to £50k damages and costs (a total bill of maybe six figures).
There is a fine balance between free expression and the right to protect people from abuse. Mr McCrea has not struck it.