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
    0

    Comment number 684.

    disrespecting the dead and those who mourn them is, in my opinion, taking free speech a step too far.
    ------

    But does moving them away from the grave of someone who fought for that freedom and paid the ultimate price for that freedom not show disrespect for that deceased individual

    So the sacrifice of the deceased is not respected while the sensibilities of those still alive is

    2cents

  • rate this
    -1

    Comment number 683.

    Freedom of speech is one thing, disrespecting the dead and those who mourn them is, in my opinion, taking free speech a step too far. Wave your flag by all means, but not at a funeral. If for no other reason, than it will lose you more supporters than it will gain.

  • rate this
    +3

    Comment number 682.

    freedom of speech but only if we agree with what you are sayign is the way of this once great country.
    Bit like the BBC we allow you to post but will remove anything we dont agree with or may upset our tory masters

  • rate this
    +2

    Comment number 681.

    How do you insult someone legally?

    Easy
    You move to a free country

    The USA still has decent levels of freedom of speech, enshrined in the constitution

    The UK does not have free speech
    The UK has political restrictions on freedom of speech issues

    http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

  • rate this
    +3

    Comment number 680.

    I got offended once and my leg fell off...

    Oh wait, no it didn't, in fact, nothing happened.

  • rate this
    +1

    Comment number 679.

    The dangerous business of expressing an opinion has never been more perilous than it is today.

    These days there's an advocacy group for practically every subject, ready to stamp out free speech.

    One cannot mention religion, childbirth, education, disability, sexuality, race or anything remotely interesting without upsetting someone, somewhere.

    Heaven forfend you might swear and injure a child!

  • rate this
    +2

    Comment number 678.

    Words are .......wind!

  • rate this
    +2

    Comment number 677.

    I'm pretty sure battle-scarred war veterans have seen worse sights than burning poppies or US flags.
    This is what happens when ignorant primates claim the ability to know enough in advance and call for prior restraint: corruption, and arrests for free opinions all in the name of protecting the "vulnerable". Nobody has the knowledge to make the call. Suspect the motives of those who claim to do so.

  • Comment number 676.

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

  • rate this
    +2

    Comment number 675.

    As usual, Tatchell seems to be missing the point. The date of this legislation gives it away. It was under Thatcher, after the miners strikes and then the uprisings, so is naturally an intemperate law, aimed at criminalising opponents of the ruling elite. If it were applied uniformly then there would be tens of thousands more in custody. The point is that this should just be repealed, not amended.

  • rate this
    +5

    Comment number 674.

    People only observe this and other, equally ridiculous, laws because they fear being unable to pay the mortgage. Say something the thought police disagree with, and it is a chat with HR, a P45 and loss of your home.
    One day, enough of us will simply refuse to toe the line and use our power, as the people, to change things back to a more Common Law model of governance.

  • rate this
    +2

    Comment number 673.

    I regard anyone's suggestion that my freedom of speech be curtailed to be an insult. People need to grow up, harden up and learn to turn the other cheek. The world has bigger things to worry about than some peoples' petty sensitivities.

  • rate this
    +4

    Comment number 672.

    Section 5 Public order is behavior likely to cause distress to anyone present.

    It was only in the last few years that the police were banned from arresting people under section 5 for swearing at them, under the simple logic the rest of the world went by of "If a few bad words distresses you, you are in the wrong damned job!"

  • rate this
    -1

    Comment number 671.

    insulting the Collective consciousness v insulting the individual has allways been a bane of free speech.
    if you underestand this everything else falls into place.
    if you don't understand this then your a sad excuse for a human being.

  • rate this
    +1

    Comment number 670.

    One separation that is useful, to avoid the threatening concerns and shouting etc. is to permit anything in text, written, like here. It is impossible to be seriously realistically threatening or offensive on the web. It can only ever be expressed opinion.

  • rate this
    +4

    Comment number 669.

    Most definently I feel it is my God given right to insult anyone i wish to, even from time to time myself but I think we should lay off the irish and accept that the Germans will never get the joke anyway.

  • rate this
    +6

    Comment number 668.

    How to insult people legally is easy - just watch the polititions, they insult our intellegence every day and get away with it!

  • rate this
    +3

    Comment number 667.

    Is there no aspect of our lives that the government and the legal will alone? Perhaps soon [they] will be able to read our thoughts and prosecute us for thinking them. I know I'll be in trouble for one!

  • Comment number 666.

    All this user's posts have been removed.Why?

  • rate this
    +2

    Comment number 665.

    If someone says something bigoted then we just treat them like the small minded idiots they are. We don't need to send them to prison, just have nothing more to do with them. We should have freedom to say whatever we want, regardless of how offended it makes someone. If someone offends you, firstly, get over it and, secondly, ignore them from then on.


    Also
    Who the hell is Scott Capurro?

 

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