Allan Massie: Are we confusing criminality with stupidity?

August used to be known as the Silly Season, and we seem to be entering it in style. On the last day of July a silly young man in Weymouth is arrested for sending silly and, yes, rather nasty, tweets to the diver Tom Daley, after young Tom and his partner in the synchronised diving had just missed out on a medal. The tweeter told the diver that he had “let down his Dad”. Later he apologised saying he didn’t know Daley’s father was dead. This seems unlikely, since I doubt if anything written about young Tom’s Olympic prospects has failed to mention that his father died last year. No matter; it was the earlier tweets that attracted the attention of the police, and led to the young idiot’s arrest for sending “malicious communications”. Some kind person had, as they say, drawn these to the attention of the Dorset Police. That’s some relief at least. Whenever something like this turns up, you wonder if police officers all over the country are spending their days scouring Twitter in search of malicious tweets. That really would be a waste of public money.

Now, like most journalists, I’ve had my share of “malicious communications“. They used to come by post, often in green ink. This made them easy to recognise and to deal with: into the wastepaper basket. These days they are more public, appearing in what is known as “the social media”: on Twitter or as online comments on articles and blogs. Fair enough, one usually says, even when the content seems unfair, being based, as it so often is, on a misreading, wilful or otherwise, of what one has actually written. “Comment is free”, as The Guardian’s site has it, quoting the paper’s most famous editor, C.P. Scott, who added “but facts are sacred”. On the whole, I agree. Abusing a journalist comes in the sauce for the goose, sauce for the gander category – and, if you don’t like the heat etc…

That said, one consequence of the emergence of the social media, in which I include posts on newspaper websites, is that more people must be aware of just how many nasty and stupid folk there are about.

Nasty and stupid, like the idiot who abused Tom Daley. But should they feel the policeman’s hand on the collar? Stupidity isn’t, thank goodness, a crime. Otherwise, since we all behave stupidly on occasion, the dock would be a very crowded place. Nastiness is another matter, sometimes anyway. Yet there must be millions of people who have spoken unpleasantly about their colleagues, neighbours or acquaintances. Do such remarks count as “malicious communications”? Is malice worse when it is aired on the web than when it is confined to gossip over a pint or a cup of coffee? Is calling the boss a ****** a matter for the police?

There was the case of a drunk Welsh student who was sentenced to 56 days in prison for a stupid and, yes, disgusting tweet, about the footballer Fabrice Muamba who had a heart attack, and was briefly judged dead, in the middle of a game. “LOL“, the tweet went,” **** Muamba, He’s dead.” This was judged to be an aggravated racial offence. I should have thought the obloquy he deservedly attracted was punishment enough.

People have always made jokes in poor taste, or what they consider to be jokes. They have made jokes about death and murder, about sex in all its varieties, about politics and religion. If I recounted here some of those I recall from childhood and adolescence, some readers might be amused, others offended. Often what strikes its author as a good joke seems feeble to others. Now, however, the humorist has to be wary. Strike the wrong note and the polis may come calling. Race and sexual orientation are subjects even more perilous than religion. The Manchester United footballer Rio Ferdinand has been charged, admittedly only by the Football Association, rather than the cops, with bringing the game into disrepute. His offence? He sent a tweet describing the Chelsea and England full-back Ashley Cole as a “choc ice”. This apparently meant that Cole was black only on the outside, white within. This is, apparently, racism, 2012 style. Considering some of the shenanigans in the football world, the idea that one black player calling another one a choc ice brings the game into disrepute seems a joke, though not a very funny one.

Much that is offensive, like the tweets directed at Tom Daley, is little worse than insensitivity. Quite often people don’t have the imagination to realise how their words will sound to others. Alternatively it may simply be bad manners. Bad manners may be objectionable and deplorable, but should they attract the attention of the law? Sir Walter Scott, reflecting on the cases that came before him in the Selkirk Sheriff Court, remarked that most of them shouldn’t have gone further than “argy-bargy owre the gairden wa’”. One might apply the same robust good sense to tweets that are found offensive.

“De minimis non curat lex” – “the law does not concern itself about very small matters” – wrote Francis Bacon, Lord Chancellor of England. Indeed it shouldn’t. We should distinguish between the sort of statements which are merely offensive and those which are likely, or indeed intended, to incite disorder. The blogger who urged his readers to post excrement through a councillor’s letter-box was rightly charged, and was indeed sentenced to 80 hours unpaid community service. But it is doubtful if the law should concern itself with people who are merely abusive and unpleasant in cyber-space – or on newspaper websites. The English Attorney-General, Dominic Grieve, has said that “the idea that you have immunity because you are an anonymous tweeter is a big mistake.” No doubt this is true, but we really should be robust about these things and use common sense. I’m sure Tom Daley can handle the stupid abuse that he received from his Twitter troll. Indeed, he seems to have done so, quickly tweeting: “After giving my all you get idiots sending me this.“

That seems a suitable and sufficient response. Was the police intervention really necessary? Don’t they have more important things to see to? Or are they just entering into the spirit of the Silly Season?