In this section, I deal with two of Phillimore’s talks in which she sought to portray herself as a victim of online harassment. Phillimore’s own legal expertise is limited to public law children’s cases, and such knowledge as she evinces about media law has seemingly been gleaned from two academic lawyers whom she knows, one in London and one in Cardiff.
The talks were delivered at two gatherings concerned with domestic abuse, one at Bristol University last June, and one at Goldsmiths in London last November. Both were organised by her friend, Miniya Grob. These two women form a mutual admiration society. Grob claims to be a victim of domestic abuse and is a fan of the now fashionable notion of “coercive control”.
Section 76 Serious Crime Act 2015 created a new offence of coercive or controlling behaviour (not defined) which causes an intimate partner or family member distress.
The thrust of Phillimore’s address is that intimacy should encompass non-relationships between complete strangers, so that section 76-type offences can apply to online communications. If this sounds a tad contrived, it is because it is.
That her talk is self-serving appears from her claim in paragraph 10:
My story – for over 2 years now I have been subjected to repeated and public abuse by a group of about 3 or 4 people on line. I have been called a ‘nasty cunt’ ‘mad’ ‘liar’ ‘unhinged’, seen countless publications including my full name, my Chambers, my photograph and my home address, there have been 2 complaints to the ICO countless complaints to my Chambers, at least 3 threats to report me to Children’s Services, 2 SAR. Etc.
What a tale of woe. But as is typical of Phillimore, she gives no explanation at all, so as to provide any context. For example, she does not set out the circumstances in which she came to be called a ‘nasty cunt’, ‘mad’, a ‘liar’, or ‘unhinged’.
Now this is telling, because a genuine victim would be willing to explain how they came to be addressed in this way. Like offence, insults are taken rather than given. Her objection to such terms addressed to her begs the obvious question: why is she so upset?
In considering how to respond to an insult, three questions arise: is it true? who said it? and why? If I call someone a liar who is one, that is not abuse. It is a statement of fact. It is generally considered wrong to lie. An accurate observation that someone is a liar, therefore, cannot be an insult even if the liar resents it.
Similarly, to call a person mad or unhinged may, or may not, be justified. It all depends on why this is said. If a person really were mad, or their behaviour gave rise to a reasonable suspicion of madness, then they cannot sensibly object to being called mad.
As for the expression ‘nasty cunt’, this may sound harsh, but again it prompts the question: how did she come by that description?
Phillimore’s silence on these matters speaks volumes. She is asking her audience to accept, implicitly and without reservation, that all those statements about her were untrue, and that she has done or said nothing to deserve such epithets. Now, as anyone who has been following my blog posts will know, that’s a big ask.
What of her other complaints? She complains of seeing “countless publications including my full name, my Chambers, my photograph and my home address”. Again, it is completely unclear what she is talking about, or why she deems this abuse. Is she talking of her entry on her chambers website? That, presumably, is publicly accessible. Her home address may, or may not be publicly accessible.
It is also unclear why she is so sensitive to others talking about her, when she is such a pugnacious public campaigner herself. Indeed, she has previously admitted to provoking others in a tweet dated 7 July 2017:
Well, I do provoke them sometimes – but whatever the provocation, their responses are often bogglingly awful. I am amazed at grown adults.
She leaves us completely in the dark as to whether she thinks the conduct of which she complains (or, on her own admission, provokes) is unlawful, and if so why. This absence of legal analysis is disappointing, especially in a legal lecture.
As for the fact that she has been the subject of two complaints to the Information Commission’s Office: what was the outcome? Phillimore is a registered data controller, and thus is subject to the ICO’s jurisdiction. But she does not explain why she considered the complaints unjustified or, more importantly, whether the ICO dismissed them. (It is a matter of record, incidentally, that Phillimore had to give an undertaking to the ICO after some client papers were taken from her car).
She refers to “countless complaints” to her chambers, but again does not provide any details. Were these complaints work-related? Then she refers to “at least 3 threats to report me to Children’s Services”. Yet on 11 April 2017, she tweeted a friend who had wished her a fab day:
I fully intend to. Left daughter to fend for herself. She can work out how to use the oven I am sure. What could possibly go wrong.
OK. really going now. off to drink G and T and ignore all telephone calls from crying child who says the oven is on fire.
On 1 May 2017, she had also tweeted provocatively:
I am shortly out for a cheeky Nandos – leaving child HOME ALONE. So if the AG, police or social services wish to intervene, I’ll be back 8pm
It is difficult to know what to make of this.
Finally, she complains of two SARs. An SAR is a Subject Access Request. Under EU and domestic law, any person may apply to a registered data controller for a copy of their personal data and an explanation of how that personal data has been processed. I cannot understand how Phillimore can sensibly claim that service of an SAR on her as a registered data controller is “abuse”. It is not: it is the exercise of a statutory right.
Phillimore then goes on to list the criminal statutes that may be invoked to regulate online speech, namely the Malicious Communications Act 1998, the Protection from Harassment Act 1997 and the Communications Act 2003 (CA). She alludes to the famous Twitter joke case of Paul Chambers v DPP in 2012, which now forms the basis for CPS guidance.
That case is extremely important, however, because it accurately states the law on freedom of expression. It’s worth recapping what happened. Paul Chambers was hoping to visit a new girlfriend in Belfast (who happily later became his wife). He tweeted:
Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!
Chambers was charged with an offence under s. 127 CA 2003 of “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character”. He was convicted in the magistrates’ court, and appealed to the Crown Court, which dismissed his appeal. On he went to the High Court, where a 2-judge court was split, and the appeal was then reheard by a 3-man court with the Lord Chief Justice presiding. They allowed the appeal, concluding that the tweet was not menacing.
Lord Judge gave a rousing defence of free speech at para. 28:
The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel. [bold emphasis added]
Lord Judge went on at para. 30:
…if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.
This is important, because what Phillimore is really complaining about in her lecture is of being upset. But Lord Judge’s observations make clear that this is not enough to take any published statement into the category of a criminal offence.
Phillimore then seeks to argue:
Our smart phones bring abuse right to us, it is literally in our hands. Abusers can also use the internet to reveal and publish person [sic] details about us. The psychological impact of such abuse has the potential to be enormously harmful and certainly bears comparison with an actual physical assault.
This is tendentious, however. For a start, people can programme their smart phones, assuming they choose to have a smart phone (not everyone does), to block or exclude unwelcome content. You don’t have to be on Twitter or Facebook: it’s a choice. And there are privacy settings within such platforms.
It is true that many personal details are published on the internet. Some of this is legitimate, and some not. This is a highly fact-sensitive area.
As for abuse, it all depends what is meant by “abuse”. Phillimore’s definition of what constitutes abuse is hugely elastic and subjective. Her suggestion that words should be regarded as tantamount to a physical assault is misconceived. Should we equate a nasty tweet or a text with being raped? Surely not.
Phillimore clearly has an axe to grind, based on her own personal disputes with others, about whom she gives virtually no information. I should add that she alludes to me as “the ringleader of the group harassing me”! That is untrue and preposterous, but it is an illustration of her propensity to misstate facts in an attempt to garner sympathy.