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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Leader: Trump's dangerous nation

From North Korea to Virginia, the US increasingly resembles a rogue state.

When Donald Trump was elected as US president, some optimistically suggested that the White House would have a civilising effect on the erratic tycoon. Under the influence of his more experienced colleagues, they argued, he would gradually absorb the norms of international diplomacy.

After seven months, these hopes have been exposed as delusional. On 8 August, he responded to North Korea’s increasing nuclear capabilities by threatening “fire and fury like the world has never seen”. Three days later, he casually floated possible military action against Venezuela. Finally, on 12 August, he responded to a white supremacist rally in Virginia by condemning violence on “many sides” (only criticising the far right specifically after two days of outrage).

Even by Mr Trump’s low standards, it was an embarrassing week. Rather than normalising the president, elected office has merely inflated his self-regard. The consequences for the US and the world could be momentous.

North Korea’s reported acquisition of a nuclear warhead small enough to fit on an intercontinental missile (and potentially reach the US) demanded a serious response. Mr Trump’s apocalyptic rhetoric was not it. His off-the-cuff remarks implied that the US could launch a pre-emptive strike against North Korea, leading various officials to “clarify” the US position. Kim Jong-un’s regime is rational enough to avoid a pre-emptive strike that would invite a devastating retaliation. However, there remains a risk that it misreads Mr Trump’s intentions and rushes to action.

Although the US should uphold the principle of nuclear deterrence, it must also, in good faith, pursue a diplomatic solution. The week before Mr Trump’s remarks, the US secretary of state, Rex Tillerson, rightly ruled out “regime change” and held out the possibility of “a dialogue”.

The North Korean regime is typically depicted as crazed, but its pursuit of nuclear weapons rests on rational foundations. The project is designed to guarantee its survival and to strengthen its bargaining hand. As such, it must be given incentives to pursue a different path.

Mr Trump’s bellicose language overshadowed the successful agreement of new UN sanctions against North Korea (targeting a third of its $3bn exports). Should these prove insufficient, the US should resume the six-party talks of the mid-2000s and even consider direct negotiations.

A failure of diplomacy could be fatal. In his recent book Destined for War, the Harvard historian Graham Allison warns that the US and China could fall prey to “Thucydides’s trap”. According to this rule, dating from the clash between Athens and Sparta, war typically results when a dominant power is challenged by an ascendent rival. North Korea, Mr Bew writes, could provide the spark for a new “great power conflict” between the US and China.

Nuclear standoffs require immense patience, resourcefulness and tact – all qualities in which Mr Trump is lacking. Though the thought likely never passed his mind, his threats to North Korea and Venezuela provide those countries with a new justification for internal repression.

Under Mr Trump’s leadership, the US is becoming an ever more fraught, polarised nation. It was no accident that the violent events in Charlottesville, Virginia, culminating in the death of the 32-year-old Heather Heyer, took place under his presidency. Mr Trump’s victory empowered every racist, misogynist and bigot in the land. It was doubtless this intimate connection that prevented him from immediately condemning the white supremacists. To denounce them is, in effect, to denounce himself.

The US hardly has an unblemished history. It has been guilty of reckless, immoral interventions in Vietnam, Latin America and Iraq. But never has it been led by a man so heedless of international and domestic norms. Those Republicans who enabled Mr Trump’s rise and preserve him in office must do so no longer. There is a heightened responsibility, too, on the US’s allies to challenge, rather than to indulge, the president. The Brexiteers have allowed dreams of a future US-UK trade deal to impair their morality.

Under Mr Trump, the US increasingly resembles a breed it once denounced: a rogue state. His former rival Hillary Clinton’s past warning that “a man you can bait with a tweet is not a man we can trust with nuclear weapons” now appears alarmingly prescient.

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear