Even Scumbags Need Privacy
Sending a racist or sexist message in a private WhatsApp group should not constitute a criminal offence
As the foul WhatsApp messages released during the Covid inquiry show, indeed, as mostly everyone’s own experience shows, WhatsApp is not a medium that encourages civil discourse. I am constantly amazed at how badly some people behave on the service, at how they send, at best, unprofessional and childish messages, or worst, vile and offensive ones, especially when the messages are easier to disseminate and make public than a physical letter or a conversation in a pub.
The careless and often obnoxious communications reveal the worst of the individuals involved, but they should not prosecuted for them in court. And yet, increasingly, there are those finding themselves in the dock for messages fired off to mates in private WhatsApp groups.
On November 6, 2023, a former police officer was convicted of sending a ‘grossly offensive’ private message on WhatsApp. Michael Chadwell, 62, had shared messages, including one about a parrot, with five other retired Met officers.
The bird-related message was a meme that someone else had created, and which had already been widely shared over social media -(you can still see it online) before Chadwell posted it in the WhatsApp group. It shows different coloured parrots above a picture of children of different races. The text says: 'Why do we cherish the variety of colour in every species… but our own?' – underneath which a comment read: 'because I have never had a bike stolen out of my front yard by a parrot.'
This was obviously a racist joke. But in what in future could well be called the Dead Parrot Defence, Chadwell reached for art history and claimed this and the other messages he sent were deliberately ‘silly’: As he explained in court about the parrot meme:
The judge was unmoved by this foray into artistic interpretation and found Chadwell guilty under Section 127 of the Communications Act 2003. The law criminalises anyone who: ‘sends by means of a public electronic communications network’ (i.e a private message over the internet or with a mobile phone) anything ‘grossly offensive or of an indecent, obscene or menacing character.’ It is a summary offence with no right to a trial by jury; the judge alone decides if the message sent is ‘indecent, obscene’ or is ‘menacing’. Which is was the judge found, as he ruled:
The racist parrot joke is far from the first instance of a private message landing someone in court. Another involves Paul Bussetti, whose own video footage filmed at a private party of a cardboard model of the Grenfell Tower being burned on a bonfire on 5 November, with jibes and laughter in the background from guests, was sent to a WhatsApp group. It was subsequently leaked to understandable outrage. Chief Magistrate Paul Goldspring said he was ‘horrified’ when he saw it. Bussetti himself acknowledged: ‘It was terrible, definitely offensive to people, it was just complete stupidness, one of those stupid moments’ . He received a 10-week suspended jail sentence under the 2003 Communications Act.
Grim. But it gets worse.
In 2022, James Watts, an ex-police officer, was jailed for 20 weeks over racist messages sent to a private WhatsApp group.
Watts was a probationary constable with West Mercia police in 2020 when he shared ‘grossly offensive’ material. He sent 10 memes to the 'Millionaire's Rodders' WhatsApp group, comprised of former colleagues from HMP Rye Hill, where he had been a prison guard. One featured a white dog wearing Ku Klux Klan clothing and another showed a kneeling mat with George Floyd’s face printed on it.
One member of the group appears to have found the messages offensive. Rather than confronting the members and countering the content exchanged among them with a simple 'call it off' or 'don't be a dick' he went straight to Twitter/X to make sure thousands of other people could read them: ‘Former work colleague now serving police officer sent these in group chat’ he tweeted, with all the details, ‘What hope is there in police in the UK sharing these.’ Outrage inevitably ensued.
Watts quit before he was dismissed. In police interviews, he admitted to the racist nature of the messages. He received a 20-week prison sentence and a lifetime ban from holding any policing role.
Good riddance, you might think: nasty people saying nasty things should get what is coming to them, particularly when they have been involved in upholding the law and maintaining social order. But it’s not so simple.
Ed West, of the Wrong Side of History Substack, points out that the severity of the Watts sentence ‘jars’ with the usual standards of British justice. He compares the 20 weeks jail time for Watt’s WhatsApp messages to the case of two men in Lancashire, who were spared prison despite putting a stranger in intensive care. West notes that offensive speech is being treated as a more serious crime than actual violence; tweeting can lead to longer sentences than inflicting grievous bodily harm. The Watts sentence, he writes, is ‘a quite extraordinarily harsh sentence in a country where violent offenders regularly avoid prison’. He concludes that Britain in effect has two sets of blasphemy laws.
West makes a number of good points, but his concern is the policing of speech. Mine is that people are being prosecuted for what they said to each other in what they assumed was a private space. Â
I have written in this earlier post about the problem with criminalising private conversations, about how we all need a space to mouth off in private, to say stupid, dumb and offensive things. But I didn’t going into detail about the cases in which people have been prosecuted. This is because the messages involved are unpleasant - the racist parrot ‘joke’ is innocuous compared to them. But elaboration is required to push the point and work through the principle.
In November 2022, two metropolitan police, PC Jonathon Cobban, 35, and Joel Borders, 45, were prosecuted under Section 127 of the Communications Act 2003 for making jokes in a private WhatsApp group about raping women, shooting some ‘cunt’ in the face, as well as tasering cats, dogs and disabled people. They were sentenced to three months behind bars.
Personally, I find these remarks more offensive than any of the others detailed above. I also think that these private comments reveal that the police have a problem with outdated attitudes and behaviour; their remarks may well be a disciplinary offence in the work place. At the same time, I don’t believe they should be prosecuted in a court of law for what they said to each other in a private communications app. Sack them, perhaps, discipline them certainly, but do not send them to court.
For a start, the messages concerned were not intended for everyone, they went meant for a select group of people. And, although I found the private messages of Cobban and Borders more egregious than the racist parrot joke or the 'Millionaire's Rodders' WhatsApps, maybe you didn’t. This is not to relativise all meaning in speech, but to point out that ‘anything ‘grossly offensive or of an indecent, obscene or menacing character’, which is the terms of Section 127 of the Communications Act 2003 , has a subjective quality to it. One judge could easily disagree with another judge about what they find ‘indecent’ or ‘offensive’ in a conversation that was not designed to include them.
What we say to each other in private is different to what we say in public. In private, amongst people we know, friends and colleagues, words and images take on different meanings to when expressed in bald daylight—context matters. There is a shared understanding and layers of history that alters the meaning and significance of words.
Imagine if everything you said to people you trust when you thought no one was listening was suddenly broadcast and subject to court action. People show a playful and experimental part of themselves, but also the worse part of who they are when they think no one else outside of a select group can hear them. Everyone says things in private that they wouldn’t want other people to read or hear, because they are messing around, joking, releasing frustration, or, frankly, being a tosser. But this provides an important function, and not having such a space is a denial of autonomy and freedom.
Given, also, that speech codes in public have changed dramatically in recent years, it is likely that many, including professionals, need a space in private to work this through. Private speech is way of testing out what you think and seeing what it sounds like out loud amongst people you trust. Being a bit transgressive before behaving better. Maybe, as a consequence, rethinking things. Or maybe not.
Ultimately, though, privacy does protect nasty people with really nasty views who usually hide that part of themselves from scrutiny. As it should. Because we all need that space of private release and a backstage area to mouth off: even scumbags need privacy.
It’s tempting to say that people shouldn’t send messages online or over an app that they wouldn’t want to be made public. If you are in a pub and mouthing off, you look around and keep your voice down. And that’s true. But mostly everyone communicates online via apps and we should not give away the principle that private messages should be treated as such.
Private conversations do something for us. They are an essential space for the individual to flex their thoughts, let off steam, and to grow. Without the opportunity to express ourselves candidly within the confines of a close group, we are deprived of the means to explore, test, and untangle the complexities of our thoughts and emotions.
Privacy is also essential for solidarity. It’s a realm where we unveil our vulnerable selves, a sanctuary in which we unwind and share our unguarded personality with those we trust: friends colleagues and loved ones. It’s where we develop bonds of affection and communities of interest. Those bonds of trust are vital to the individual and for society.
Private conversations, which traditionally allowed for informal regulation among friends and colleagues, now pose a risk as they can be weaponised. If friends, colleagues, or lovers fall out, individuals can comb through past confidential, lighthearted, intoxicated, or heated conversations and expose them on social media platforms. This behaviour, though dishonourable, is becoming more prevalent. Whereas ideally, conflicts should be resolved privately, without resorting to publicising wrongs in a vengeful manner.
We are in danger of creating a culture in which is becomes impossible to speak freely in private, because of the law, but also what is considered socially permissible and normal behaviour. Whilst Section 127 of the 2003 Communications Act should be repealed, it’s important to recognise that as much as a legal problem this is a cultural one. The leaked nature of these private exchanges points not just to imprudent friend selections but to an evolving societal landscape where the divulgence of private conversations is incentivised, no longer stigmatised as reprehensible snitching.
