Social media prosecutions threaten free speech in the UK - and beyond

Traditions like Speakers' Corner protect free speech on the street, so why can't we do it on the internet?

Visitors to Hyde Park on a Sunday can see people standing on stepladders engaged in passionate debate with groups clustered around them. Speakers’ Corner is a symbol of Britain’s centuries old commitment to freedom of speech.

When it comes to free speech on the internet, however, Britain seems to have lost its way. Recent prosecutions for material posted on social media sites and internet forums raise troubling questions about the state of the law and limits of free expression. These prosecutions are causing dismay not just in the UK but among those battling internet censorship around the globe.

This week alone, a 19-year-old man was sentenced to 12 weeks in a young offenders’ institution after posting comments, some sexual, about two girls who are missing and presumed dead. A 20-year old man was sentenced to 240 hours of community service for posting comments about dead soldiers on his Facebook page. 

In March, a 21-year old man was sentenced to 56 days in prison for racist comments on Twitter about a seriously ill black footballer. In August, a 26-year old man was given a two-year suspended sentence and community service after posting racial insults on the website of Liverpool football club. 

It should be well-established that freedom of expression includes the freedom to shock, offend or disturb. Yet with the amplifying effect and legal novelty of social media, that basic truth is too often overlooked.
Even in cases involving incitement to violence, there are questions about whether the response of the authorities has been proportionate. Police arrested a 17-year-old boy in August for death threats on Twitter against a British Olympic swimmer, and cautioned rather than charging him. But four-year sentences for two men for incitement during the August 2011 riots were upheld by the Court of Appeal later that year, despite the lack of evidence that anyone was actually incited to  riot as a result.

There is a growing recognition in Britain that these trends threaten free expression. In July, a panel of High Court judges, including the head of the judiciary, quashed the 2010 conviction of a 27-year old man – and the £1,000 fine - for a tweet in which he jokingly threatened to blow up a local airport because of his frustration that it was closed because of bad weather. The ruling in what social media referred to as “Twitter Joke Trial” quoted Shakespeare for emphasis: “They are free to speak not what they ought to say, but what they feel.”  But the ruling appears not to have deterred prosecutors and the lower courts from pursuing similar cases.

The top prosecutor in England and Wales, Kier Starmer, has said he is concerned about the potential chilling effect arising from prosecutions for offensive speech and this week began consultations with lawyers, police, free expression groups and social media companies, as part of a review of guidelines for such prosecutions.
Part of the problem is that the laws in place were designed for a different era. The offence the two men were prosecuted for this week – grossly offensive electronic communication – is part of the Communications Act 2003, passed when social media were in their infancy and Twitter and Facebook, which can quickly transform private thoughts into mass communication, did not exist.  The offense dates back even earlier, though, to the 1930s and was designed to protect telephone operators.

The Director of Public Prosecutions will hopefully bring some much-needed restraint to the social media prosecutions, helping to delineate distinctions between material that is merely offensive, however so, and material that is part of a campaign of harassment, credible threat or clear incitement to violence. Prosecutors already have a duty to ensure that any prosecution is in the public interest and to protect free expression  -- a right given particular emphasis in the domestic Human Rights Act. 

Law magistrates and professional judges also need clearer guidance about the importance of free expression in a democratic society. But ultimately a change to the law is likely to be required to ensure that free speech is protected.

Hyde Park has long been famous. It must be puzzling and discouraging to people in less democratic countries who look to the UK as a model to see people here being sent to jail for speaking their minds.  But with the right approach, Britain could do the same for speech on the internet as Speaker’s Corner did for speech on the streets.

Benjamin Ward is deputy director of the Europe and Central Asia Division at Human Rights Watch.
 

Communist MP Saklatvala Shapurji holding forth at Speakers' Corner in 1933. Photograph: Getty Images

 

Benjamin Ward is deputy director in Human Rights Watch’s Europe and Central Asia division

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I'm a Remain voter who feels optimistic about Brexit - here's why

Take back control is more than just a slogan. 

Most politics geeks have found themselves deliciously sucked into a soap opera over the last few days. It’s fast-paced, personality-based and ripe for speculation. But underneath it all, the deeper, harder questions remain – what does Brexit look like, and how can we make it work?

When news of Leave’s victory broke in the early hours of Friday morning (is it possible that was just a week ago?) I felt like the only Remain voter who had some kind of optimism. Fellow Remainers still reeling from the result berate me for it, but I continue to find two reasons for hope.

First, leaving gives us a chance to build a different type of economy. I don’t wish to belittle the recent economic fallout, but with the right leadership and negotiations, we could use this moment to push for an increase in trade with the Commonwealth and beyond. A fall in the pound will disappoint many, but it could help with a much needed rebalancing of our economy, moving from one predominantly based on financial services in London to manufacturing across the regions. 

Second – and perhaps more importantly – leaving is a chance to rebuild our politics. For too long, millions of people in this country have felt ignored or exploited by those who call themselves democratic leaders. In protest, they have left mainstream parties to join UKIP or the hordes of non-voters. In winning this referendum, they have finally been listened to. Perhaps the pressure cooker of discontent can finally be taken off the boil. Perhaps parties can use this result as a chance to rebuild trust and shake up some of our other institutions that are badly in need of reform. 

This point was really brought home to me by a student in the school where I teach. The morning of the referendum she told me that she didn’t think we’d leave the EU, even if the people voted for it. Her friends agreed, saying it was “weird you have to vote in pencil”. They were scared the people’s voice could so easily be rubbed out. When I saw her the next day, a small part of me was relieved that these students had seen that people can genuinely trump the establishment. 

If you’re not convinced, just imagine the backlash if Remain had won by a point or two. We almost certainly would then have voted in an extremely right-wing government, much the same way that the SNP saw a boost after they lost the independence referendum last year. 

Of course, a positive path for Brexit is far from guaranteed. Any leader that goes back on the vote, or tries to fudge it by saying that open borders are a price worth paying, is going to do worse than plummet in the polls - they are going to undermine our entire democracy. And a whole generation’s trust in politicians is already dangerously low.

But this doesn’t have to be a moment for the right. Good leaders understand that Leave’s “take back control” message was about a genuine concern with our borders. Great leaders will acknowledge that it also reflected a deeper concern about the need for agency. They understand the vote was a rejection of a neoliberal approach to the economy that fails to make space for well-paid work, family and community.

The public voted for decreased pressure on public services and a Britain that would negotiate as hard in India as it would in Germany for trade deals. They voted to end a perceived overcentralisation of power by elites, and create a more democratic Britain that gives more dignity to its people. I might not have believed that leaving the EU was the best way to achieve these things, but I’m on the left because I believe we are best placed to make these desires real.  

The vote to Leave or Remain was a binary decision. But Brexit is not. What type of path we take now depends entirely on the direction we choose, and the perseverance we show along the way.

Rowenna Davis is Labour PPC for Southampton Itchen and a councillor for Peckham