YOU know the childhood saying, ‘Sticks and stones may break my bones, but words will never hurt me’.
It seems the courts may disagree. A Chelsea football fan was recently jailed for eight weeks for posting racist tweets.The sentence was originally five weeks but the Crown Prosecution Service convinced the court that due to the racial nature of the posts, the 21-year-old’s incarceration should be lengthened.
In a similar case, a ten-week sentence was given to an angry football fan who live-streamed 18 seconds of racial abuse directed at three England players following the Euro 2020 defeat by Italy. A CPS representative quoted by the Manchester Evening News said, ‘There is absolutely no room in the game, nor elsewhere, for racism.’
It does not appear that the fan was involved in any way with the actual game. Without knowing the specific content, only that it was described as ‘hateful’ and ‘racially offensive’, even perhaps ‘threatening’, given that these three football millionaires doubtless benefit from round the clock security, it really does not seem likely that a forklift driver could present any risk of harm through the medium of a video.
As these two ‘offenders’ are hardly any threat to society, why could they not have been given a fine or a warning, or community service mandates? At a cost to the taxpayer of £118 per day (as of December 2019 the highest in Europe), the funding could have been better spent.
Are we so worried that the emission of offensive words or images into the ether will cause grievous harm? As it seems we are, what is the measurable damage from this activity? I doubt if the football ‘victims’ enjoying the highlife will spare a thought for the imprisoned forklift driver.
The CPS has announced that it is ‘working with the police, player bodies and organisations to explain what evidence is needed to pass our legal tests to authorise charges in hate crime cases’; meaning that it expects to prosecute and incarcerate more people for what will be deemed unpalatable online content in future.
As the legal landscape stands, racially offensive user-generated content posted on social media sites is prosecuted under the Public Order Act 1986 rather than a statute specific to the online arena. Social media sites providing a forum for such content have been compared to public squares as places for the discussion and debate by free people of ideas. It matters not to the comparison that such sites are owned by the tech companies. Everyone with access to a phone or computer can publish and read opinions on social media. It goes without saying that owing to the public nature of such broadcasts they should enjoy the strongest available protections as free speech which we can allow without causing actual (not hypothetical) harm to specific individuals.
There are two other statutes relevant to the discussion of electronic communications – the Communications Act 2003 and Malicious Communications Act 1988. These cover indecent, grossly offensive or threatening, or intentionally false material. Recent amendments proposed by the Law Commission to both have been described by the Free Speech Union (FSU) as further tightening of the stranglehold on individuals’ rights to freedom of expression.
Under the purview of the Public Order Act 1986, a communication to anyone outside a home of any threatening, abusive or insulting words that are either intended to or are likely to have the effect of stirring up racial hatred constitutes a criminal offence. The trouble with this being criminalised in the first place is that the crime itself is purely the intention, or alternatively the likelihood of its effect. In fact the intention to commit a crime becomes the actual crime. So to establish a burden of proof to convict requires a court to guess at the perpetrator’s feelings at the time he or she posted. Consider that alongside the fact that humans are driven by their passions and they often say things they later regret or perhaps never meant. How do you prove guilt ‘beyond a reasonable doubt’ in the area of irrational feelings with no actual harm?
In no other area of criminal law but the suppression of free speech is a pure intention or likelihood to cause harm the subject of a charge or conviction. I suppose the closest to it would be possession of a firearm. But in such cases the countervailing need of each individual to not have to face imminent death does present a strong enough reason to arrest the person carrying a gun (at least in the United Kingdom). In that respect the distinctions should be clear. Every adult in society needs to take responsibility for his or her feelings.
If you think the sentences of those two football fans under the current statutory landscape should concern every freedom-loving person in this country, just consider the Online Safety Bill (previously called the Online Harms Bill), published on May 12 this year. It will make those two prosecutions look like a teddy bears’ picnic. The clue is in the name: any content which is deemed ‘harmful to adults’ by the Ofcom regulators will be censored and possibly result in punishment of the perpetrator. Besides imposing a duty of care on ISPs such as Google and social media giants such as Facebook, the Bill will suppress any kind of speech that is deemed ‘unsafe’ by the Westminster Blob. This will include racist content, of course, but also anything else which Ofcom considers detrimental.
Given that the statute’s proposed wording will require the tech companies to police their content, it is unlikely to deal with ‘anti-vaxx’ hate crime and bigotry. It will all be down to their determination if there is a reasonable likelihoodthat it presents a material risk of significant adverse physical or psychological impact on a person with ‘ordinary sensibilities’.
Commenting on the Bill, the FSU wrote that ‘the concept of “psychological harm” that informs the proposed offence is too vague, subjective and open to interpretation’.
I don’t know about anyone else but depending on how long I have been waiting for a cocktail there is a reasonable likelihood that any manner of statements could have a serious psychological impact on my sensibilities.
It will be a minefield attempting to navigate such legislation. Some victims are predicted to benefit from it more than others. And some perps will get off scot free.
