In the UK, the Court of Appeal has taken a stance on what constitutes “malicious communications” – and when speech should not be construed as such, because it is part of a political debate.
The appellate court ruling in R (Crown) v. Thomas Casserly overturned the first instance judgment that found a man guilty of violating the 1988 Malicious Communications Act.
And that was because his “indecent or grossly offensive” email sent to a councilor was part of a political exchange.
The case goes back to the spring of 2022 when Thomas Cesserly was found guilty of sending the email, while his intent was found to be “to cause distress or anxiety contrary (…) to the Malicious Communications Act 1988.”
50-hour community service, 10-day “rehabilitation,” and a 5-year restraining order was the sentence.
The concerns over the management of a local cemetery escalated into this, after Casserly sent an email that CC’d severely disabled councilor Victoria Dominguez-Perez, and read, in part:
“Middlewich has many problems which need addressing and the residents are looking to the councilors to have the knowledge, understanding and intelligence to improve the town for all residents. Therefore, how does a councilor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?”
The councilor in question sent the email to the police.
Now, the main takeaway from the Court of Appeal decision is that the political context must play a prominent role in determining what is “grossly offensive” speech.
Specifically, and very relevantly, given the overall trends in the country, where political speech is concerned, the court said that in order to qualify communication as “grossly offensive” it is not enough for someone to claim to have their “feelings hurt.”
“Purported effect on a claimant” is how the ruling put it, while making it clear that this will not do; instead, along with content, “the context in which it is delivered” must also be taken into account.
By stating that the bar for this should be set “very high,” the Court of Appeal has made speech advocates hopeful that the ruling will have an important influence on how freedom of expression that plays out during political disputes is treated these days in the UK.
The ruling further gives guidance both to jurors, in terms of upholding free speech as a foundation of a democracy, and to public officials, who are told in no uncertain terms not only to be particularly tolerant, but that one expectation of them is “to have a thicker skin than those who are ordinary citizens.”
