Alison Chabloz was convicted recently of an offence under section 127 of the Communications Act 2003, for uploading to Youtube, three songs that she performed. The songs included lyrics stating that, the gas chambers in WWII were a fabrication, the diary of Ann Frank was inauthentic, Elie Wiesel’s account was falsified for personal gain and that Jews control the mass media in the Western world.
Before I answer the above question, I provide below a brief exposition of section 127 of the Communications Act 2003.
Section 127 states:
127Improper use of public electronic communications network
(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a)sends by means of a public electronic communications network, a message that he knows to be false,
(b)causes such a message to be sent; or
(c)persistently makes use of a public electronic communications network
The Communications Act 2003 replaced the Telecommunications Act 1984. Section 43 of the Telecommunications Act had the same wording and created the same type of offence, as section 127. The difference between the two, was that when section 43 was in force, there was no internet. Thus the communications in question would have always been one to one, with one person intending to communicate with the other and the recipient, having no choice about whether to receive such communication. The wide drafting was therefore, easier to justify than if this related to messages that were designed to be heard by an audience or the world at large. A Youtube video is uploaded to the world at large; it is not a one to one communication.
The original guidance from the Director of Public Prosecutions, was that section 127 would only be used to prosecute, stalking, harassment and credible threats of violence. This was amended in 2013, so that the CPS also had to consider whether the sender was motivated by hostility based on race, religion or some other minority status.
Therefore, section 127 is being used for purposes it was not originally intended for. This is particularly significant in a system where legislation is debated and then voted on, after it is explained by Ministers. As section 127 is a summary only offence, there is no prospect of jury nullification being used to acquit Defendants in defiance of the law and to send a message to the CPS and the Government, see here.
I have not read the full judgment, as it does not appear to be available. The following is probably the ratio decidendi/crux:
“This court is entirely satisfied that the material in each of the songs complained of is grossly offensive, as judged by the standards of an open and multi-racial society – as opposed to any of them being, merely offensive. The defendant has failed, by some considerable margin, to persuade this court that her right to freedom of speech as provided by Article 10, under the guise of her work as an artist, can properly provide her with immunity from prosecution in relation to each of the songs complained of. Having had the opportunity to assess the defendant’s live evidence during the course of these proceedings, I am entirely satisfied that she will have intended to insult those to whom the material relates or, at least, that she must have recognised that there was a risk of so doing.”
Is Holocaust Denial now a Criminal Offence?
The simple answer is no. The Campaign Against Anti-Semitism (“CAA”), who initiated the prosecution privately before it was taken over by the CPS, said that the case sets a precedent that ‘Holocaust denial’ and ‘anti-Semitic conspiracy theories’ will automatically contravene section 127, see here.
CAA may believe this, want to believe it or want others to believe it, but nothing in the judgment that I have read (I would of course need to read the whole judgment to form a proper view), suggests that the judge intended to create an a priori rule, that the sharing of specific theories was per se, a breach of section 127. Even if the judge wanted to create such a precedent, he could not do so as a District Judge sitting the Magistrates Court.
Therefore, there is probably still a significant distinction between irreverent songs and dry lectures (of course it would not be the giving of a lecture that constitutes the offence but sending the content via an electronic communication) that concentrate on alleged facts, with respect to section 127. Indeed, the Prosecutor specifically stated that the songs were:
“a million miles away from an academic critique of the Holocaust”
However, as section 127 is so widely drafted and is being used for purposes it was not intended for, it is very difficult to predict what messages will or will not, lead to a conviction under section 127. Uncertainty in the law is inherently problematic and where free speech is affected, creates a chilling effect.
Chabaloz joins a long list of people who have been convicted of a criminal offence for speech that was not inciting violence or directed towards a specific person. In any other context she could have been grossly offensive without committing an offence; she could for instance have performed for an audience of thousands without committing an offence, provided she did not send or upload a recording of this. Here is my view on the proper boundaries of free speech and my objection to the existence of offences such as 127 and so called ‘hate speech laws’.
 M Belam – The Guardian 25.5.18
 I use inverted commas because I do not know what is meant by this. Will the Holocaust be defined with reference to the rulings of the Nuremberg Tribunal and/or accounts of specific historians? Will the offence require the offender to deny, entirely, that the German state committed genocide against the Jewish population of the territories it controlled, or will it be sufficient for the offender to dispute specific details, such as the conventional estimates for the death toll, the use of gas chambers or the guilt of specific Defendants at the Tribunal?