Malicious Communications offences and Holocaust Denial
In Israel and some 16 European countries, there is a specific offence of Holocaust denial.
Holocaust denial is denying that the genocide of Jews took place by the Nazis in the Holocaust. Deniers will, for example, say that significantly less than the accepted number of Jews died, that the camps were not used for murder or that the Nazis simply wanted to deport Jews rather than exterminate them.
There is no such offence in the UK, but that is not to say that Holocaust denial is accepted.
In England and Wales, any similar behaviour is likely to be treated as an offence or offences under the Malicious Communications Act 1988 or the Communications Act 2003.
Alison Chabloz is a blogger who believes that “Hitler was right”. In 2018 she was convicted of two offences under section 127 of the Communications Act 2003. This followed the performance of anti-Semitic songs upload to YouTube; she then posted links to them on her blog. The judgment from her appeal against her conviction described the songs as weaving together Holocaust denial and hateful attacks on Jewish people generally and that they were grossly offensive. She was given a suspended sentence of 20 weeks imprisonment suspended for two years.
In May and July 2019, Chabloz made remarks on a radio show and shared the broadcasts on her blog. The Campaign Against Antisemitism said Chabloz argued that Jews who didn’t conform to her idea of western society should be deported, and that Jewish people used the Holocaust as an “eternal cash cow”. She further commented that the judge who convicted her previously had succumbed to the “Jewish lobby” and that there was nothing wrong with saying that Hitler was right.
At the end of March, she was convicted of further offences under the Communications Act 2003 due to the comments made on the show. The convictions placed her in breach of the suspended sentence, and she received an 18-week term of imprisonment.
What about freedom of speech?
Chabloz asserted in her appeal against her first convictions that the proceedings were an “affront to her freedom of speech”. She said that she was being harassed and targeted by those who did not like her views.
The Court addressed the issue and agreed the right to freedom of speech and expression is a crucial one in a democratic society. However, the rights are not unqualified. As there is no specific offence of Holocaust denial, material that consists of this can only be an offence under section 127 if grossly offensive. In respect of Holocaust denial, the Court did go on to say:
“That said, no tribunal of fact is required to proceed on the basis of absurdity or fiction. The Holocaust – by which we mean the systematic extermination of millions of people, predominantly although not exclusively Jews, by the forces of Nazi Germany and their collaborators, between 1941 and 1945 happened. World War II is surely the best documented and most extensively studied period of modern history, and the Holocaust is one of the best documented aspects of that conflict, if not the best. A mass of evidence, of various kinds attests to it. Moreover, the Holocaust has been the subject of extensive judicial enquiry, from the Nuremberg trials onwards, in a number of jurisdictions.”
Judicial notice was taken, therefore, that the Holocaust occurred, and the songs were judged in that context.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
Image credit: “Holocaust Day 19147” by tedeytan is licensed under CC BY-SA 2.0
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Social Media Crime
With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider how you use them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites.
Control your information online
Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance initiation to a burglar – it is surprising how much information we reveal about ourselves over a period of time.
If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child, building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.
Many online games allow for messaging between users – do you know who your child is talking to?
Control your behaviour
Many offences can be committed in the heat of the moment, or drink, the typing of a comment that cannot then be taken back.
Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003, with stiff penalties in both cases.
Revenge porn, for example publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.
What may seem to be banter may actually be offensive, what may be intended to be seen by a few could be seen by thousands.
A fake social networking profile or account may also be a criminal offence in certain circumstances.
What about freedom of speech?
This is not an absolute right and may be restricted where necessary and proportionate.
Think it couldn’t happen to you?
Remember the Robin Hood Airport case? A young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.
He found himself in court, was convicted by magistrates, and again on appeal before finally his conviction was quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.
What are the consequences?
Social media has even recently been blamed for an increase in knife crime as it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.
Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse, saying that individuals need to appreciate they can’t go online and press a button without any consequences.
At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful, people’s sensitivities need to be balanced with free speech, and we see reported a number of cases that cause us concern.
This tide of sensitivity could result in people pleading guilty when in fact they are not – always take early advice.
How can we help?
If you need further advice in respect of any potential criminal matter please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk
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