On 1 October Frankie Boyle tweeted a joke to his 1 million followers about Madeleine McCann and Jimmy Saville. 9 days later it has been re-tweeted 1485 times and has been marked as a favourite over 450 times.

On 4 October, Mathew Wood, made a joke on his Facebook page about Madeiline McCann and  the missing five-year-old April Jones. It was not read by a million people (some reports mention less than 50). It was not shared and no one, as far as reports reveal, ‘liked’  it. It was though refered to the police who read it and on 6 October Mathew Wood was arrested and charged under s127 of the Communications Act 2003 (which makes it an offensive to post obscene messages via social media).

On 8 October, Mathew Wood was sentenced to 12 weeks in a young offenders prison after pleading guilty to posting offensive messages on Facebook.

The Chairman of the Bench, Bill Hudson, when sentencing Mathew Wood said: “We have listened to the evidence in what can only be described as a disgusting and despicable crime and the bench finds was completely abhorrent. The words and references used to the current case in Wales and that of the missing girl in Portugal are nothing less than shocking, so much so that no right-thinking person in society should have communicated to them such fear and distress.”

While Mathew Wood starts his sentence today, Frankie Boyle continues his sold out UK tour.

For many, the jailing of Mr Wood, attacks the principle of free speech. A principle which was described in 1929 in a famous American case as not being “free thought for those who agree with us but freedom for the thought we hate.”

But free speech has never been universal, it has always been restricted.

We protect reputations via  libel and slander in England & Wales (or defamation in Scotland). We protect national security via the Official Secrets Act. We protect justice through contempt of court procedures. The law protoects those who cannot protect themself.

Even the European Convention on Human Rights states the right to freedom of speech should be “subject to such… restrictions… [as] are necessary in a democratic society, for the protection of health or morals.” (Article 10)

Despite this there has always been a thought that we can say what we want. Who hasn’t discussed that famous Hollywood actor who everyone knows it gay. Or that footballer their friend saw doing coke in a club. Or told a joke we know some people would find offensive. It’s only now, with the ubiquitous use of social media, that we leave a record of what we say and think. And where there is a record there is a trail of evidence. And evidence leads 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 same 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.

But if that is so, why does one man face 12 weeks behind bars while another faces a sold out UK tour? Are Frankie Boyle’s comments on Madeline McCann any less offensive than those of Mathew Sweet? Mathew Sweet, we are told, merely copied his jokes from the online website Sickopedia. In terms of actions he was doing no more than the 1438 who re-tweeted Frankie Boyle’s joke.

So, what separates the two men? What we know, irrespective of any debate about the offensive of one joke or the other, is that Frankie Boyle is a household name with 1,000,000 followers while Mathew Sweet was an unemployed man from Chorley and a self-proclaimed idiot and fool. The sad irony of this whole situation is that the laws designed to protect the weak have been used instead to pick on the weak.

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