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
    +1

    Comment number 344.

    Ref 320 Dr feel good - oops This comment has been referred for further consideration.
    So much for freedom of speech.

    "If a word can be percieved in a thousand ways then how can any any law be created to police its usage?"

    It can't mate - that is why this is a stupid and dangerous law.

  • rate this
    +6

    Comment number 343.

    Yesterday the BBC removed 2 of my posts which questioned the legality of a well known,profitable investment bank,how is that freedom of speech? Their ludicrous PC views are seen as a joke by the majority working class,even the people they are deemed to protect,in my experience find them embarrassingly patronising.reminds me of basil fawlty not mentioning the war! Have a chat with yourself BBC

  • rate this
    +1

    Comment number 342.

    Dr Feelgood #320:
    "If a word can be percieved in a thousand ways then how can any any law be created to police its usage?"

    Quite. I often trade nasty insults with friends, we can take it. But consider how nice, friendly words like "mate", "pal", and, indeed, "friend" can be perceived when spat from six inches away from your face. Only a politician or lawyer could think they can regulate that.

  • rate this
    +5

    Comment number 341.

    i've decided to report everyones comments today as you all offend me, oh except for any of mine which are totally reasonable... (one my posts has been sensored, my first one!! whooo hoooo, happy days...)

  • rate this
    +50

    Comment number 340.

    I still like the definition of diplomacy I heard some time ago. Diplomacy is the ability to tell someone to go to hell in such a way that they look forward to the trip.

  • rate this
    +4

    Comment number 339.

    I once said 'bacon' within earshot of a police officer in London. I received a £50 fine. :(

  • rate this
    +1

    Comment number 338.

    Telepathically

  • rate this
    +2

    Comment number 337.

    How to insult somebody legally!
    .
    If it's a politician - just tell them the truth, they don't like it or anything near the truth. Our "leaders" for example are very easily upset, all you need do is discover what they have been upto behind our backs.
    .
    You insult them, and their "intelligence" when you ask a question because you should know before asking that you will not get a straight answer.

  • rate this
    +5

    Comment number 336.

    324.DrJG
    [snip]
    And as a Christian, I have always found blasphemy laws laughable. I believe in a God who is better able to defend Himself than any man-made law can.
    =
    As a rationalist, so have I. I also find christian, and other religious, beliefs laughable. Just thinking about some of the stuff believed by religious wingnuts can reduce me to tears of laughter.

  • rate this
    +1

    Comment number 335.

    Learning to take an insult is a life skill. There's always going to be inflammatory comments being thrown about, whether the motive is frivolous banter or genuine disdain.
    A lack of of these things will only achieve an increase of inhibited and apathetic people.
    Thankfully though, most people realise these laws are political easter eggs: Rigid and brittle, but when cracked open, oh look! Nothing.

  • rate this
    +1

    Comment number 334.

    #323 Its Insane! The BBC can name someone who is found guilty of a crime... like this man (who incidentally likes to portray himself as a victim when it suits too)
    http://news.bbc.co.uk/1/hi/uk/2290726.stm
    But when I repeat it using polite language and merely repeating what the BBC say it violates house rules. Interesting how they'll justify the moderation rules if this law is overturned.

  • Comment number 333.

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

  • rate this
    0

    Comment number 332.

    Interesting reading this article to notice how Churchill's attempts at "bon mot" have failed the test of time. Against Shakespeare and Healey he comes across as a neanderthal thug. However, trading insults forms an essential part of celebrating our differences. For this reason there must be rules that prevent contagion from 'celebration' to 'discrimination' and unambiguously exclude abuse.

  • rate this
    0

    Comment number 331.

    Is this a light of common sense finally shining through? I very much hope so.

  • rate this
    +1

    Comment number 330.

    Insulting people for how they were born should be a crime. The exception here should be stand up comedy. For a stand up comedian, anything is fair game. The quality of comedy is usually proportional to how risky the subject matter. The fact it could be a crime for insulting a religion is positively medieval. Following a certain religion is certainly not a natural state of being.

  • Comment number 329.

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

  • Comment number 328.

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

  • rate this
    +1

    Comment number 327.

    a person who resorts to violence or intimidation is a person who has run out of ideas. The well crafted put down celebrates the triumph of intellectual capacity over mindless thuggery. I wish Edmund Burke were in parliment now!

  • rate this
    +4

    Comment number 326.

    One thing that always strikes me as very odd, is that a black can call me a Honky & it's OK.
    If I call a black man the N word, then it is racism.
    If a black person calls another black person the N word - it's OK.

    Can we try to put some common sense back into the system! Free speech, thicker skins & sense of humor is needed. BUT without intentionally upsetting the other party.

  • rate this
    0

    Comment number 325.

    That's good news, now let's take a look at our ludicrous libel laws.

    @digbic78 Am I a bad person for smiling at that one? :)

 

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