Opinion column: Andrew Todd

On 1 October, Frankie Boyle tweeted a joke to his 1,000,000 followers about Madeleine McCann and Jimmy Savile. Nine days later it had been re-tweeted 1,485 times and marked as a favourite over 450 times. On 4 October, Matthew Woods made a joke on his Facebook page about Madeleine McCann and the missing five-year-old April Jones. It was read, some reports say, by fewer than 50 people; no one, as far as known, “liked” it. Instead it was referred to the police and Wood was arrested and charged under s 127 of the Communications Act 2003 (sending obscene messages).

Woods pleaded guilty and on 8 October was sentenced to 12 weeks in a young offenders prison. The chairman of the bench said Woods’ actions “can only be described as a disgusting and despicable crime... no right-thinking person in society should have communicated to them such fear and distress”.

Meanwhile Frankie Boyle continued his sold-out UK tour.

For some, the jailing of Woods attacks the principle of free speech, a principle described in a 1929 American case, US v Schwimmer, as not being “free thought for those who agree with us but freedom for the thought we hate”.

But the principle has never been universal. We protect reputations via defamation. We protect national security via the Official Secrets Act. We adopt contempt of court procedures. Even the European Convention on Human Rights makes the right to freedom of speech “subject to such… restrictions… [as] are necessary in a democratic society, for the protection of health or morals” (article 10).

Yet there has always been a school of thought that believes we can say anything we want. Who hasn’t discussed some current scandalous gossip about a celebrity? Or told a joke we know some people would find offensive? It’s only now, with the ubiquity of social media, that we leave a record of what we say and think – one that can lead to conviction because the authorities have proof that laws have been broken.

If you ask a criminal why they commit a crime, you will get the answer “I thought I would get away with it.” Never has this attitude been more true than on social media. Never has it been more wrong.

The standard doesn’t change when someone holds a microphone on stage. Last year, Boyle caused media outrage after a woman at his gig took offence at jokes about Down’s syndrome, a topic of which she had personal experience. And while it can be funny to see a comedian pick on a stranger in the audience, it’s not funny when it’s you. But proximity doesn’t just apply to the subject of the joke; as with all jokes, it involves timing. How “too soon” is now?

What is offensive today will be boring tomorrow, as tastes change and events lapse into history. Comics therefore seek novelty in tragedy. Whether 9/11 or Michael Jackson, dark humour hovers like a vulture over the bereft.

I know this from experience. Last year I told a joke about Amy Winehouse to an audience of 50 on the night she died. I knew it would offend, but at the time I was more interested in being topical than in doing the decent thing. Later that night, I read a comment on Facebook that said in response to another joke: “Any idiot can write a joke by using one of Amy’s song lyrics.”

Any idiot can and any idiot did. But, with time, tragedies fade from memory. And we forget that words have power: they raise arms and break hearts; they can make you laugh, cry, and sometimes, read on a computer screen on a Sunday night, they can even make you say “I’m sorry”.

And once you acknowledge that freedom of expression can be tempered, how can you deny legislative protection from those who do not accept the limits of others? The irony, as I write this article, is that Frankie Boyle has just been awarded damages against the Daily Mirror, which referred to him as a “racist comic”. His QC said: “Calling [Frankie] vile and offensive is one thing. It goes with the territory. But accusing him of being a racist is an entirely different matter.”

What separates Matthew Woods and Frankie Boyle? Woods, we are told, merely copied his jokes from the website Sickopedia. In terms of actions he was doing no more than the 1,438 who re-tweeted Boyle’s joke. Boyle, a household name, deliberately sets out to make people laugh with offensive comments; Woods, an unemployed man from Chorley, was drinking and unaware of what his actions meant. The sad irony is that laws designed to protect the weak have been used to pick on the weak.

Whether you agree with such laws as the Communications Act or not, whether you support unlimited freedom of speech or not, what we should not abide is the abuse of such laws to make scapegoats of those who cannot defend themselves, because that is the true injustice of the Facebook trial.