University of Warwick suspends 11 students over rape jokes

...As an aside, why the screenshots such poor quality? Taking literal photos of your screen with a phone is basic af.

Freedom of speech doesn’t mean freedom from consequences. If you want to be an ******** then go ahead, but the University has every right to kick you.

Ad hominem.

If you put "freedom to make disgusting jokes" (paraphrasing 27 pages of defense here) ahead of a person's right not the be intimidated or mocked for having suffered a sexual assault, then you need your head looking at.

Thilakawardhana is a case that gave rise to both disciplinary and FTP procedures. Although the disciplinary sanction imposed was minor, the court did not raise any suggestion that disciplinary action was impermissible on freedom of speech grounds.

[video="youtube;kM4C6et1DnA"]https://www.youtube.com/watch?v=kM4C6et1DnA[/video]

...Ones like "love Hitler, hate Jews" and "Sometimes it's fun to just go wild and rape 100 girls" are perfectly fine (although not necessarily funny) in the right company, though. Shouldn't need to say this, but obviously it's disgusting and wrong to say those things with any sincerity.

But that concerned threatening someone on a public post, not merely being offensive in private.

It's pretty creepy to make rape jokes about somebody specific, in private or otherwise.

Yes, and no doubt the perpetrator in that case was wearing different coloured socks.

The point is that disciplining someone for both a public posting and a private posing to the victim (there was both in the case I cited) was not seen as contravening the perpetrator's human rights.

The question is whether a private posting which one of the recipients then publishes to the world (which is reasonably foreseeable), is materially different in a legally relevant way.

The answer isn't a foregone conclusion either way, but saying "that was different" isn't an answer in itself.

Ahh, my issue was not that HR would prevent the withdrawal of the student. It was that the cases you provided did not prove that HR would not come into play because the cases were HR did not come into play were materially different to the case at hand.

I hadn't noticed that the 170-word offensive message was to PS, but surely that makes it even more dissimilar to the Warwick case. The person who created the offensive post decided to send it to the person who he was threatening. Very different to sending it to friends, who consequently breach your trust. The foreseeability that the threatened person might see it is quite different.

— — Quite obvious that Art 10 would be engaged with this case, and the test of proportionality would be applied. It would be more proportionate to expel a student who has been threatening than to exclude a student for being merely offensive. It becomes more likely an Art 10 claim would succeed here than were it used in the medicine case. In Ngole, Art 10 was argued and expulsion was found to be proportionate because of the professional dimension. It being established that regulation of professions (the legitimate aim in that case) requires a greater degree of flexibility against the Convention text, in order for regulation to be effective, paras 78-81.
— — In Ngole, at para 109, the judge noted counsel argued (relying on Sanders v Kingston, Livingstone, Sandown, Vajnai and Gunduz) that the right not to be offended should not trump the right to give offence. The judge did not go into detail because, as I raised earlier, the case was not about controlling offensiveness. But the judge did note Lord Dyson MR in Core Issues Trust said that offensiveness is a common standard to determine "decency" which is used to regulate professional conduct. This does not really support your argument, because again this case is about FTP and FTP has greater ECHR flexibility per paras 78-81.

Further, s127 Comms Act 2003 has some interesting jurisprudence in this area which suggests that jokes should be protected to an extent and the context in which they were posted should influence how offensive the court perceives them. However it is important to note this concerns withdrawing liberty rather than granting liberty, so it is materially different to the case at hand also.

I think the problems for the perpetrators are:-

(a) the private communication point does not work because it is reasonable forseeable that one of the fairly numerous recipients would distribute it. You are saying that is a breach of trust (I think you are using that as a synonym for confidence) but any duty of confidence has to be inferred merely from the fact the group is private. The circumstances including the absence of warnings of the existence of the duty mean that the duty might not exist at all and it if does exist, the risk of dissemination despite the duty was high. The failure of the private communication point means the perpetrators are in no better position than if they had posted the messages publicly.

(b) The personalised nature of many of the comments identifies a victim. The moves the case out of the university as moral censor inquiringly as to the tastefulness of the comments and into the university acting to protect an individual in respect of whom the university had the right and arguably the public law duty to act.

(c) I think there is a third point. The comments aren't really a joke. By referring to the comments as a joke what the perpetrators really mean is that the comments shouldn't be given their natural meaning but instead should be seen as comments to which no consequence should be paid. It is the losing argument in Carlill v Smoke Ball Company and in Edwards v Skyways. If this had been a true joke with a punchline, the public couldn't have received the comment without also having any implied threat in the comments dissipated.

No, I was not talking about confidence and I purposefully avoided talking about it by using generic "breach of trust". But I don't think that there must be confidence for the posters to claim they reasonably never expected other participants to post the messages publicly. This is important because it affects how we determine the harm caused by the messages as they were originally posted, i.e. by A "posting" they never foresaw the direct consequence of B "distress" to the "victims" of the comments. This therefore limits the inherent culpability of the comments, making expulsion potentially less proportionate.