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

Getty Images.
Show Hide image

Could Labour lose the Oldham by-election?

Sources warn defeat is not unthinkable but the party's ground campaign believe they will hold on. 

As shadow cabinet members argue in public over Labour's position on Syria and John McDonnell defends his Mao moment, it has been easy to forget that the party next week faces its first election test since Jeremy Corbyn became leader. On paper, Oldham West and Royton should be a straightforward win. Michael Meacher, whose death last month triggered the by-election, held the seat with a majority of 14,738 just seven months ago. The party opted for an early pre-Christmas poll, giving second-placed Ukip less time to gain momentum, and selected the respected Oldham council leader Jim McMahon as its candidate. 

But in recent weeks Labour sources have become ever more anxious. Shadow cabinet members returning from campaigning report that Corbyn has gone down "very badly" with voters, with his original comments on shoot-to-kill particularly toxic. Most MPs expect the party's majority to lie within the 1,000-2,000 range. But one insider told me that the party's majority would likely fall into the hundreds ("I'd be thrilled with 2,000") and warned that defeat was far from unthinkable. The fear is that low turnout and defections to Ukip could allow the Farageists to sneak a win. MPs are further troubled by the likelihood that the contest will take place on the same day as the Syria vote (Thursday), which will badly divide Labour. 

The party's ground campaign, however, "aren't in panic mode", I'm told, with data showing them on course to hold the seat with a sharply reduced majority. As Tim noted in his recent report from the seat, unlike Heywood and Middleton, where Ukip finished just 617 votes behind Labour in a 2014 by-election, Oldham has a significant Asian population (accounting for 26.5 per cent of the total), which is largely hostile to Ukip and likely to remain loyal to Labour. 

Expectations are now so low that a win alone will be celebrated. But expect Corbyn's opponents to point out that working class Ukip voters were among the groups the Labour leader was supposed to attract. They are likely to credit McMahon with the victory and argue that the party held the seat in spite of Corbyn, rather than because of him. Ukip have sought to turn the contest into a referendum on the Labour leader's patriotism but McMahon replied: "My grandfather served in the army, my father and my partner’s fathers were in the Territorial Army. I raised money to restore my local cenotaph. On 18 December I will be going with pride to London to collect my OBE from the Queen and bring it back to Oldham as a local boy done good. If they want to pick a fight on patriotism, bring it on."  "If we had any other candidate we'd have been in enormous trouble," one shadow minister concluded. 

Of Corbyn, who cancelled a visit to the seat today, one source said: "I don't think Jeremy himself spends any time thinking about it, he doesn't think that electoral outcomes at this stage touch him somehow."  

George Eaton is political editor of the New Statesman.