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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Quiz: Can you identify fake news?

The furore around "fake" news shows no sign of abating. Can you spot what's real and what's not?

Hillary Clinton has spoken out today to warn about the fake news epidemic sweeping the world. Clinton went as far as to say that "lives are at risk" from fake news, the day after Pope Francis compared reading fake news to eating poop. (Side note: with real news like that, who needs the fake stuff?)

The sweeping distrust in fake news has caused some confusion, however, as many are unsure about how to actually tell the reals and the fakes apart. Short from seeing whether the logo will scratch off and asking the man from the market where he got it from, how can you really identify fake news? Take our test to see whether you have all the answers.

 

 

In all seriousness, many claim that identifying fake news is a simple matter of checking the source and disbelieving anything "too good to be true". Unfortunately, however, fake news outlets post real stories too, and real news outlets often slip up and publish the fakes. Use fact-checking websites like Snopes to really get to the bottom of a story, and always do a quick Google before you share anything. 

Amelia Tait is a technology and digital culture writer at the New Statesman.