Condemning “managed anorexia”

What are the limits of free speech?

Sarah Tonner has written a moving and measured piece on the Guardian's website about the issues of free speech and irresponsible promotion of anorexia. She argues that the harm that may be caused by such a campaign is such that it should be prohibited. She concludes of the person behind the campaign:

If [the] tweets risk encouraging anorexia and causing harm, this should be addressed. By exercising his "liberty" to say whatever he likes, he risks infringing the liberties of others who read his words – those with a mental illness who have no control over the effect his words might have on their minds.

However, as Sarah is the girlfriend of Paul Chambers, the defendant in the Twitter Joke Trial, the question has been raised whether it is consistent to support free expression in his case, but not in the case of a vile (and thankfully now ended) Twitter campaign.

No sensible person believes free speech is an absolute right. If it was, obtaining goods and services by deception could not be an offence. Providing a false invoice is not a "speech act" that should be accorded the protection of human rights law. Nor is blackmail or conspiracy to murder.

Nor is a bomb hoax. Such actions are rightly prohibited by the Criminal Law Act 1977, the law in respect of which Paul was initially arrested. However, the police and the Crown Prosecution Service quickly realised that there was no evidential basis for charging Paul under that offence. It was not what he had actually done. It is the fact that the CPS decided to prosecute Paul anyway, and chose the obscure and vague Section 127 of the Communications Act to do so, that causes significant concern from the perspective of free expression.

Free expression is a qualified right, but the presumption must always be in favour of it. Any interference with it must be proportionate and exact. And the prohibition must always be in the wider public interest.

Was the "managed anorexia" campaign the health equivalent of a bomb hoax, which would be rightly prosecuted under the Criminal Law Act? If so, the same principles would apply: there are words that can do damage, and in respect of which there should be a prohibition. Indeed, the promotion of health products is a tightly regulated area for this reason.

Or was the "managed anorexia" campaign a speech act that should have the unconditional protection of the right to free expression?

Views will differ on these questions. However, if a "managed anorexia" campaign is indeed more akin to an actual bomb hoax than to a jokey tweet, then it is perfectly open to condemn one, and to defend the right to send the other.

I suspect there is not a single supporter of the Twitter Joke Trial who also believes that there should be no prohibitions on promoting dangerous health practices. The problem is where to draw the line. But it is not hypocritical to believe that there is a line to be drawn.

David Allen Green is legal correspondent of the New Statesman. He is also solicitor for Paul Chambers.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Why Philip Green's fall should bring down the honours system – but won't

Sir Shifty may fall in disgrace, but our ridiculous system will endure. No matter what's happening in the rest of politics.

Sir Philip Green’s Efficiency Review (2010) is his Das Kapital and it is still, happily, online. You can, if you wish, smirk at his recommendations to the government, which were solicited by David Cameron, I imagine, because when he stood next to Green he looked not like a 17th-century woodcut but like a tall, handsome semi-aristocrat.

“There is no motivation to save money or to treat cash ‘as your own’,” Green grumbles, before complaining, “There are inconsistent commercial skills across departments.” I am weeping with laughter at the whole report. But I’m not one of those BHS employees watching their pension ­vanish as the hideous cushions, throws and bedspreads pile up on the Green family yacht Lionheart. I instantly rename the yacht 14-Day Return Policy No More.

The days when Green could write efficiency reviews for people to ignore are gone. It is said that he could lose his knighthood, because that would be exciting and pointless. If so, I hope the ceremony features the formal rending of a garment from the BHS sale bin – perhaps a torn sock will be flung at his head? The Queen will not be happy, because de-knighting makes the ancient system of patronage look as ridiculous as it really is. Do intercessors between man and God make mistakes? Would they raise a man the Daily Mail now calls “Sir Shifty”? (I checked whether there was a Sir Shifty among the knights of the Round Table who flogged the Holy Grail to a passing tinker. There was not.)

Lord Melbourne advised Queen Victoria not to attempt to make her husband, Albert, a king, for if the people knew that they could make kings, they might unmake them. Green will discover this in his tiny way. But the elites should not hide their baubles. One fallen knight will not destroy the system (and I cannot think that Green will take £571m from his Lionheart cushion budget to save his knighthood by replenishing the BHS pension fund, because a knighthood is, in essence, just a tiny Bentley Continental that you wear over your nipple). One fallen knight should destroy the system but it won’t, because human conceit and docility are without end. Green will be shunned. Nothing will change.

One might have hoped that the Brexit vote would have alerted Cameron to the abyss between the electorate and the elected. (Even Alastair Campbell, chomping against Brexit, seemed to forget that he was as complicit in the alienation of voters as anyone else: government by sofa, teeth and war.) The response was glib, even for Cameron, a man so glib that I sometimes think he is a reflection in a pond. Brexit hit him like someone caught in a mild shower without an umbrella. He hummed at the lesson that history dealt him; he hummed as he left his page. It was the hum of the alpha Etonian caught out in a mistake, yes, but it was still a bloody hum.

His next act was to increase pay-offs to favoured courtiers against civil service advice and at public expense; then, it was reported, he nominated his spin doctor Craig Oliver and his former spin doctor Gabby Bertin for peerages, because the upper house needs more PRs. He has learned nothing. I wish him a relaxed retirement in which he will, apparently, write his four-page memoir, David Cameron: My Struggle (sub-subtitle: Eton Mess?). I hope he does not attempt to deny “the prosciutto affair”, because there is no need. It was not true. It was too pure a metaphor.

So the honours system, an essential part of our alienating politics, alongside dodgy donors, duck houses and George Galloway, endures in its worst form as conventional politics fails. It is a donkey sanctuary for political friends and Bruce Forsyth. I am not suggesting that everyone who has been honoured is dreadful – some lollipop ladies deserve to be patronised with an OBE (when there is no E any more), I am sure, and the lords, some of whom are excellent, are the functional opposition now – but the system can no longer be defended by the mirth potential of watching politicians ponder what light-entertainment celebrities might swing a marginal before being posthumously accused of rape. We must find something better before the house burns down. Perhaps a robust parliamentary democracy?

The problem is best expressed by the existence of a specialist consultancy called Awards Intelligence, which engages in “VIP brand-building” by soliciting awards. It sells “awards plans” from £795, which I could well imagine Philip Green perusing as he bobs about aboard Lionheart, were it not too late. The Awards Intelligence website tells us so much, though obliviously, about the narcissism of modern politics that I am tempted to reproduce it in full. But I will merely report that it asks:

"Did you know that you can join the House of Lords on a part-time basis as an Independent Crossbench Peer or a political peer affiliated to one of the main politial parties – even if you have ongoing work, family or community commitments!"

The message from Awards Intelligence, which boasts of a 50 per cent success rate, is clear: the legislature is part-time, it exists to “instil trust, add credibility and provide a platform for you to have your say” – and it can’t always spell “political”.

Sir Shifty and Awards Intelligence do not constitute the worst crisis in the history of honours, dreadful though they are. During the First World War the royal German cousins were stripped of their garters, so that British soldiers would not have to kill men of higher rank. But it is time for the Queen to stop pinning toys on nipples. They are part of a political system sweeping us, swiftly, towards the night.

This article first appeared in the 28 July 2016 issue of the New Statesman, Summer Double Issue