How do you insult someone legally?

From top left, clockwise: Angry man in car, dictionary entry for "abusive", Man being abusive, woman shouting at phone, student confronted by policeman

Campaigners want to overturn laws targeting "insulting words and behaviour". Just how safe is it to scorn others?

British public life has a lengthy and noble tradition of well-crafted insults.

Shakespeare's "thou hast no more brain than I have in mine elbows". Winston Churchill's comparison of Charles de Gaulle to a "female llama who has been surprised in the bath". Dennis Healey likening a parliamentary attack by Sir Geoffrey Howe to being "savaged by a dead sheep".

But not all barbs are quite so erudite. For every Churchillian bon mot, many more are made to abuse, intimidate and frighten.

For decades the law has sought to regulate the latter categories. In 1986, section five of the Public Order Act made it illegal to engage in "insulting words or behaviour" in England and Wales.

Winston Churchill Churchill: Master of the put-down

But a backlash has been brewing amid concerns that efforts to protect the public's sensibilities have gone too far.

A campaign called Feel Free To Insult Me has been launched to lobby for section five's repeal, citing a series of cases when the legislation attracted criticism and ridicule.

In one well-publicised 2006 incident, an Oxford University student was arrested after asking a mounted police officer if he realised his horse was "gay". Two years later a teenager was charged after demonstrating outside the London headquarters of the Church of Scientology with a placard declaring that Scientology was not a religion but "a dangerous cult".

Another case saw a pair of Christian hoteliers put on trial after they were wrongly accused of asking a Muslim guest if she was a murderer and a terrorist because she was wearing a hijab.

How to insult people

Scott Capurro three-way picture

Comedian Scott Capurro, renowned for near-the-knuckle humour, says:

"The whole point of stand-up comedy is to annoy people. If you aren't offended you aren't getting your money's worth.

"There's a social contract. When people come to see me they usually know what they are letting themselves in for. However, because comedy is becoming more mainstream, people who aren't prepared for that are sometimes there and it can be a problem.

"But usually the audience likes being part of the show. They like watching you dissect them.

"There are rules. It's never good to make fun of someone's appearance or of people less powerful than you. But the worst thing is to ignore people.

"I have to deal with hecklers. The comedian has to stay in control. I've thrown drinks, I've turned tables over, I've punched people in the head - but that's the worst route to take because it shows you don't have the verbal discourse to handle it."

None of these incidents resulted in a successful prosecution - charges against the Oxford student and the Scientology protester were eventually dropped, while a judge dismissed the case against the hoteliers.

Nonetheless, opponents fear that the public has become inhibited from speaking openly.

The campaign against section five has forged some unlikely alliances, with left-wing human rights activist Peter Tatchell backing it alongside Conservative MP David Davis and Nigel Farage, leader of the UK Independence Party. Also lending their support are both the Christian Institute and the National Secular Society.

According to Tatchell - who was himself charged in 1994 under section five after his pro-gay rights group Outrage! staged a protest against the Islamist party Hizb ut-Tahrir - the law has created a "chilling effect" on free speech and the right to protest.

"In a free and democratic society, insults should not be a criminal offence," he says. "The law already protects people against discrimination, threats and incitement to violence."

Tatchell accepts, however, that repeal of the law would mean accepting behaviour widely regarded as repugnant.

In 2011 Emdadur Choudhury, a member of the extremist group Muslims Against Crusades, was found guilty under section five after he burned poppies on Remembrance Day as a two-minute silence was observed nearby by service personnel and their families. Choudhury also chanted slogans such as "British soldiers burn in hell".

Likewise, Tatchell accepts that repealing section five could open the door to displays like those of the Kansas-based Westboro Baptist Church, whose leaders are currently banned from entering the UK. The group has gained notoriety for picketing military funerals while brandishing lurid slogans condemning homosexuality.

Tatchell believes accepting such displays from a small minority is the price of liberty for all. "Freedom of speech is for everyone, including people we disagree with," he adds.

The law could be in line for reform. A Home Office review launched in October 2011 is examining whether the use of the word "insulting" in the law provides a "proportionate" response and a "necessary balance between the right to freedom of expression and the right of others to not be harassed, alarmed or distressed".

Peter Tatchell The campaign has wide-ranging support, from Peter Tatchell to UKIP, Christian bodies to secularists

Indeed, in Scotland "threatening and abusive" behaviour is outlawed by Section 38 of the Criminal Justice and Licencing Act 2010 but insults are not. Under article nine of the Public Order (Northern Ireland) Order, a person accused of insulting behaviour is not guilty if he or she did not intend their conduct to be insulting and were not aware that it might be.

As it stands, anyone in England and Wales accused of a section five offence can defend it if they can demonstrate that their conduct was "reasonable".

For supporters of the current arrangements, it is not the law that is the problem but its interpretation by over-zealous officials.

Indeed, criminal barrister John Cooper QC argues that the fact none of the most prominent cases - such as those of the "gay" horse, the Scientology protester and the Christian landlords - resulted in convictions demonstrates that the legislation itself is sound.

"The issue is not what the law is, it's how it's interpreted, not just by the police but also by the Crown Prosecution Service," he says. "It's a matter of common sense. The statute is not meant to cover comments about the colour of one's shirt or one's hair."

Sticks and stones, nuts and bolts

Members of Oswald Mosley's Black Shirts

It says a person is guilty under section five if he/she:

  • uses threatening, abusive or insulting words or behaviour, or disorderly behaviour
  • displays writing, sign or other visible representation which is threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress"

This offence has the following statutory defences:

  • person was inside a dwelling and had no reason to believe the words or behaviour used, or the writing, sign or other visible representation displayed would be heard or seen by person outside that or any other dwelling
  • that his/her conduct was reasonable

Instead, he says, the prosecution must demonstrate that any insulting behaviour has caused undue distress.

For this reason, Cooper argues, the anti-section five lobby has failed to take account of the trauma that can be caused by the most aggressive insults.

"The people on this campaign are articulate, confident people who are robust enough to shrug off insults," he adds. "But it's not them the law is there to protect - it's there to protect vulnerable people.

"To some, a particularly vicious insult where there is also threatening behaviour is as damaging as a blow to the face."

Unsurprisingly, much of the debate around section five has been framed within the context of broader disputes about the impact and extent of political correctness.

Additionally, a series of high-profile cases involving the conduct of internet "trolls" has highlighted the shifting demarcation of where free speech ends and abusive behaviour begins.

However, for barrister-turned-comedian Clive Anderson - whose cynical barbs famously provoked the Bee Gees to storm off his chat show in 1996 - a much older legal tradition underlies the issue.

"This is not a modern thing," says Anderson, presenter of BBC Radio 4's legal affairs programme Unreliable Evidence. "For centuries people's religious beliefs have been protected by the blasphemy laws.

"In more modern times things like people's sexuality have become an area where we have tried to avoid causing offence. But where the two collide we have a problem - and we've discovered that we've taken on responsibility for standing between them."

Insults might always be a fact of life. The extent to which we tolerate them, however, is an age-old conundrum.


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  • rate this

    Comment number 104.

    64.Joanne Mason "I am a transgendered woman and experience abuse on the streets"
    Agreed. It's all about who has the power and organisation to demand laws. E.G. most fat people will if asked recount daily incidents of abuse which if levelled against most other groups would constitute hate speech. I'm wary of designating 'protected classes' because it implies that those not covered are 'fair game'.

  • rate this

    Comment number 103.


    But was the horse gay?
    No, it was a gray.

  • rate this

    Comment number 102.

    #73 The house of commons (and courts of law) are the only places were libel laws don't apply.

    Fredrick Forsyth wrote an amusing short story about this (a man libelled by a newspaper but unable to afford to sue the paper punches the journalist then uses the court hearing to freely abuse his libeller)

  • rate this

    Comment number 101.

    in an ideal world that would be fantastic however we don't and never will acheive the 'ideal world'. You will always have the upper hand by ignoring and even laughing at such insults for 'they know not what they do'. Keep your chin up and be dignified.

  • Comment number 100.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • rate this

    Comment number 99.

    I still find my mother's philosophy works for me. "If you can't say anything nice, don't say anything at all" ... The people who deserve insults are often not work the imagination it takes to come up with them, or the oxygen it takes to express them.

  • rate this

    Comment number 98.

    I love the double standards you see when watching the reality police shows. People will get arrested for swearing at a police officer who has already sworn at them. I'd welcome the repeal of Section 5 just so the smug police sorts can't use it just when they're feeling narked.

  • rate this

    Comment number 97.

    I've never heard of Scott Capurro, but the man is clearly an idiot. Oh, I'm sorry, was that offensive? Not to someone who thinks it's ok to assault his audience, I doubt.

    The point of stand-up comedy is not to annoy people, it's to make them laugh. If you can't do that without being insulting, then you're not terribly good at your job. Maybe you should be a traffic warden instead(?)

  • rate this

    Comment number 96.

    It seems that racist insults are the worst crime in the world. Burgle a house & you may get a warning, but say something racist or perceived to be racist by the person who sees themselves as a victim & you get locked up for 6 months

    The multicultural be nice to everyone or we lock you up society has gone way to far led by the media, politicians & public services scared for the jobs & pensions

  • rate this

    Comment number 95.

    More campaigning for the infantilisation of the population by the inane.

    Next, we will be told how many times a day it is permissable to wee with the now obligatory estimate of its damaging effects on the economy and how it is our fault the country in recession.

  • rate this

    Comment number 94.

    If I called Clive Anderson a bald headed **** he would be able to defend himself. If I went outside the Christie and did the same to a woman being treated for cancer it's unlikely she would be in an emotional state to do so.Same insult but one should rightly result in some sort of legal action. It all comes down to common sense but can our legal system cope with this?

  • rate this

    Comment number 93.

    "...well, if he doesn't actually do anything wrong, we could always get 'im on a section 5."

    Not hard to imagine is it?

  • rate this

    Comment number 92.

    Sticks and stones...

  • rate this

    Comment number 91.

    You cannot legislate for being insulted as what constitutes an insult? The best way to deal with it is to just shrug it off and move on. If you don`t your will end up as Victor Meldrew.

  • rate this

    Comment number 90.

    Churchill said of Attlee that he was 'a modest man, with much to be modest about'. He was the master of pithy one liners. (The irony here is that Attlee achieved more in peacetime than Churchill did in wartime, but I digress.)

    However, nothing for me beats Noel Coward on Edith, Oswald and Sachaverell Sitwell, who he dismissed as being 'two wiseacres and a cow'. Now that's how to insult someone!

  • rate this

    Comment number 89.

    Kevin Bridges: What's the Story?

    I was watching the above programme, did anyone else pick up on how he ridiculed the Christian faith and then took a look at the Seek faith in a much more rounded way.

    I'm suprised this programme didn't flout Ofcoms rules about representation of faiths and religious beliefs.

  • rate this

    Comment number 88.

    I agree the law should be amended - certain types of insulting behaviour are never, and will never, be acceptable (e.g. racism, homophobia, sexual harrassment in the workplace) but we already have laws to deal with this. I think anything else should be fair game really!
    Racist,Sexist and Homophobic are also perjorative terms used by people who can't use a rational argument

  • rate this

    Comment number 87.

    Freedom of Speech is the only way even if we are subjected to opinions we despise, or loathsome insults, we have to be able to hear any opinion without content screened by the government. Any sort of policing of freedoms of expression and opinion only does more to radicalise people with abhorrent views as they form persecution complexes.

  • rate this

    Comment number 86.

    I've always thought, that in certain circumstances, ALL options for insult should on the table.

  • rate this

    Comment number 85.

    I'm not sure, I like the idea of repealing it, but as the article points out, none of the trivial charges have resulted in procsecution and the, burning of poppies and picketing gay funerals I think should be ilegal.

    However, people are too easily offended these days and the media outrage over slight non-PC things statements probably contibutes more to a feeling of restricted speach than the law.


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