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.)

Getty Images.
Show Hide image

Who really controls the Labour Party now?

Jeremy Corbyn's allies will struggle to achieve their ambition to remove general secretary Iain McNicol.

Jeremy Corbyn's advance at the general election confirmed his place as Labour leader. Past opponents recognise not only that Corbyn could not be defeated but that he should not be.

They set him the test of winning more seats – and he passed. From a position of strength, Corbyn was able to reward loyalists, rather than critics, in his shadow cabinet reshuffle. 

But what of his wider control over the party? Corbyn allies have restated their long-held ambition to remove Labour general secretary Iain McNicol, and to undermine Tom Watson by creating a new post of female deputy leader (Watson lost the honorific title of "party chair" in the reshuffle, which was awarded to Corbyn ally Ian Lavery).

The departure of McNicol, who was accused of seeking to keep Corbyn off the ballot during the 2016 leadership challenge, would pave the way for the removal of other senior staff at Labour HQ (which has long had an acrimonious relationship with the leader's office). 

These ambitions are likely to remain just that. But Labour figures emphasise that McNicol will remain general secretary as long he retains the support of the GMB union (of which he is a former political officer) and that no staff members can be removed without his approval.

On the party's ruling National Executive Committee, non-Corbynites retain a majority of two, which will grow to three when Unite loses a seat to Unison (now Labour's biggest affiliate). As before, this will continue to act as a barrier to potential rule changes.

The so-called "McDonnell amendment", which would reduce the threshold for Labour leadership nominations from 15 per cent of MPs to 5 per cent, is still due to be tabled at this year's party conference, but is not expected to pass. After the election result, however, Corbyn allies are confident that a left successor would be able to make the ballot under the existing rules. 

But Labour's gains (which surprised even those close to the leader) have reduced the urgency to identify an heir. The instability of Theresa May's government means that the party is on a permanent campaign footing (Corbyn himself expects another election this year). For now, Tory disunity will act as a force for Labour unity. 

George Eaton is political editor of the New Statesman.

0800 7318496