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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Jeremy Corbyn supporters should stop excusing Labour’s anti-immigration drift

The Labour leader is a passionate defender of migrants’ rights – Brexit shouldn’t distract the new left movement from that.

Something strange is happening on the British left – a kind of deliberate collective amnesia. During the EU referendum, the overwhelming majority of the left backed Remain.

Contrary to a common myth, both Jeremy Corbyn and the movement behind him put their weight into a campaign that argued forcefully for internationalism, migrants’ rights and regulatory protections.

And yet now, as Labour’s policy on Brexit hardens, swathes of the left appear to be embracing Lexit, and a set of arguments which they would have laughed off stage barely a year ago.

The example of free movement is glaring and obvious, but worth rehashing. When Labour went into the 2017 general election promising to end free movement with the EU, it did so with a wider election campaign whose tone was more pro-migrant than any before it.

Nonetheless, the policy itself, along with restricting migrants’ access to public funds, stood in a long tradition of Labour triangulating to the right on immigration for electorally calculated reasons. When Ed Miliband promised “tough controls on immigration”, the left rightly attacked him.  

The result of this contradiction is that those on the left who want to agree unequivocally with the leadership must find left-wing reasons for doing so. And so, activists who have spent years declaring their solidarity with migrants and calling for a borderless world can now be found contemplating ways for the biggest expansion of border controls in recent British history – which is what the end of free movement would mean – to seem progressive, or like an opportunity.

The idea that giving ground to migrant-bashing narratives or being harsher on Poles might make life easier for non-EU migrants was rightly dismissed by most left-wing activists during the referendum.

Now, some are going quiet or altering course.

On the Single Market, too, neo-Lexit is making a comeback. Having argued passionately in favour of membership, both the Labour leadership and a wider layer of its supporters now argue – to some extent or another – that only by leaving the Single Market could Labour implement a manifesto.

This is simply wrong: there is very little in Labour’s manifesto that does not have an already-existing precedent in continental Europe. In fact, the levers of the EU are a key tool for clamping down on the power of big capital.

In recent speeches, Corbyn has spoken about the Posted Workers’ Directive – but this accounts for about 0.17 per cent of the workforce, and is about to be radically reformed by the European Parliament.

The dangers of this position are serious. If Labour’s leadership takes the path of least resistance on immigration policy and international integration, and its support base rationalises these compromises uncritically, then the logic of the Brexit vote – its borders, its affirmation of anti-migrant narratives, its rising nationalist sentiment – will be mainlined into Labour Party policy.

Socialism in One Country and a return to the nation state cannot work for the left, but they are being championed by the neo-Lexiteers. In one widely shared blogpost on Novara Media, one commentator even goes as far as alluding to Britain’s Road to Socialism – the official programme of the orthodox Communist Party.

The muted and supportive reaction of Labour’s left to the leadership’s compromises on migration and Brexit owes much to the inept positioning of the Labour right. Centrists may gain personal profile and factional capital when the weaponising the issue, but the consequences have been dire.

Around 80 per cent of Labour members still want a second referendum, and making himself the “stop Brexit” candidate could in a parallel universe have been Owen Smith’s path to victory in the second leadership election.

But it meant that in the summer of 2016, when the mass base of Corbynism hardened its factional resolve, it did so under siege not just from rebelling MPs, but from the “Remoaners” as well.

At every juncture, the strategy of the centrist Labour and media establishment has made Brexit more likely. Every time a veteran of the New Labour era – many of whom have appalling records on, for instance, migrants’ rights – tells Labour members to fight Brexit, party members run a mile.

If Tony Blair’s messiah complex was accurate, he would have saved us all a long time ago – by shutting up and going away. The atmosphere of subterfuge and siege from MPs and the liberal press has, by necessity, created a culture of loyalty and intellectual conformity on the left.

But with its position in the party unassailable, and a radical Labour government within touching distance of Downing Street, the last thing the Labour leadership now needs is a wave of Corbynite loyalty-hipsters hailing its every word.

As the history of every attempt to form a radical government shows, what we desperately need is a movement with its own internal democratic life, and an activist army that can push its leaders as well as deliver leaflets for them.

Lexit is no more possible now than it was during the EU referendum, and the support base of the Labour left and the wider party is overwhelmingly in favour of free movement and EU membership.

Jeremy Corbyn, John McDonnell and Diane Abbott are passionate, principled advocates for migrants’ rights and internationalism. By showing leadership, Labour can once again change what is electorally possible.