Is Twitter the end of small talk?

Reproduced here for UK readers, my latest BBC Future column looks at the legal implications of tweeting, and the blurring boundaries between private words and public actions.

“Action”, wrote Mark Twain, “speaks louder than words, but not nearly as often.” What happens, though, when even everyday words themselves take on some of the qualities of actions?

Although he courted more than his fair share of controversies, Twain (born Samuel Clemens in 1835) lived at a time when public and published words remained a bounded field, possessed by a minority. Mere talk – those mundane conversations and concerns his wit so carefully skewered – existed far from worldly words and actions.

Some eleven decades after the author’s death, such boundaries are less certain. Consider just a handful of the cases and controversies currently involving Twitter. Thanks to an allegedly racist tweet, Manchester United’s Rio Ferdinand has been charged by the Football Association with improper conduct. Legal action was threatened against Twitter in the US in order to make it reveal the identity of the person behind a spoof account satirising the chief executive of Northcliffe Media. British journalist Guy Adams was temporarily suspended from using the site following American broadcaster NBC’s complaints over his tweeting. Tweeted abuse of the diver Tom Daley led to the arrest of a teenager on suspicion of malicious communications. Twitter’s own chief executive recently called some of the abuse and heckling that takes place on his site “horrifying”. And the US government – among others – has made many hundreds of user information requests to the service for its own reasons.

It feels, as the author and media expert Dan Gillmour recently put it, like “a defining moment for Twitter”. But it’s also a moment in which larger issues of both law and belief are being defined. What freedoms and protections do we owe to each other in this young arena, where even the most casual comments are fleshed with enough permanence to act upon the world? And are our old structures for judging and enforcing these protections remotely up to the job?

Some of the most suggestive recent answers to these questions seem, to me, to be bound up with a tale that Twain himself might have considered exemplary satire: that of the British man convicted of telling a dubiously tasteful joke.

Like all the best stories, it begins with a boy and a girl. In January 2010, 28-year-old Paul Chambers was poised to visit his girlfriend in Northern Ireland when he discovered that South Yorkshire’s Robin Hood airport was closed due to snow. In frustration, he posted a message under his own name on Twitter. “Crap!” it exclaimed, “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!”

These words had no particular repercussions until, five days later, the airport’s duty manager found them while searching the site from home. The manager duly alerted his manager, whence the matter made its way to the airport police, then the local police, who two days later arrested Paul Chambers at work, interviewed him, and passed their findings on to the Crown Prosecution Service – who then charged him with the offence of sending a “message of menacing character”. Fast forward two years from the typing of those 25 offending words, and Chambers received a criminal conviction and fine under the 2003 Communications Act – an Act three years older than Twitter itself.

If this sounds more like Kafka than Twain, there is at least a happy ending. This July, the High Court publisheditsjudgement granting Chambers’s appeal against his conviction on the grounds that, effectively, it was incorrect to interpret his original comment as anything other than a joke. After all he had been through, the offending tweet was judged only to be words after all.

Comedians and journalists across the land breathed a collective sigh of relief. Common sense – as commentators werentslowtoputit – had finally come into its own. Behind the cliché, though, lurked a more interesting assertion: that “common sense” could be sensibly applied via existing laws, even in the case of a technology which didn’t exist when those laws were written.

Twitter may have grown astonishingly fast in its six years of existence, with over a hundred million active users worldwide, but using or understanding it doesn’t yet fall within most “ordinary” experiences. Indeed, when it comes to most young technologies, words like “common”, “ordinary” and even “sense” can start sounding dangerously insubstantial, and with them the appeal to reasoned consensus that underpines much justice.

With the words of its judgement – themselves a most significant form of action – the court sought to achieve just such a reasoned, universal appeal. Tweets, it observed, can be “expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go.” And this means that, for some users, Twitter “represents no more and no less than conversation without speech.”

This notion of “conversation without speech” is a strange, significant hybrid: one mixing speech’s unguarded spontaneity with writing’ permanence and digital media’s universal accessibility. What it isn’t, though, is something outside the bounds of precedent or analysis. And nor is it something that, for all the apparent maelstrom of tweet-inspired controversies, indicates the need for new laws or hasty layers of censorship.

Quite the reverse. On the same grounds that Chambers’s appeal was granted, the threats and abuses against Tom Dayley may well be successfully prosecuted. Similarly, in America, Twitter itself has thus far robustly managed to protect its users’ privacy and data ownership under exisiting laws. The greater the social haste, the more a refusal of legal speeding is likely to pay off – while the sensible safeguarding of old freedoms becomes only more important as the technological opportunities to curtail them multiply.

It is this that makes Chambers’s case seem, to me, a particularly powerful and hopeful precedent. While it’s faintly absurd that he was prosecuted in the first place, what has eventually emerged is the welcome suggestion that, far from demanding hasty new legislation, even the radical pace of technological change can be well-served by the informed interpretation of underlying principles.

Or, as the High Court permitted itself to note, “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.”

As ever, the freedom to speak and the freedom from other kinds of speech remain twinned: something that careful laws and good judgements must help nurture into a new kind of common knowledge.