Those crazy socialists in Britain are putting people in prison for posting on social networks”, says Argentine President Javier Milei. Of course, there is a bit more to it than that. But he’s got the gist right. Perhaps all those worthy lawyers and distinguished members of the Labour Party who fret so much about the image of this country might reflect on what their current behaviour is doing to it.
Of course we all agree that rioting and violence should be punished. We all agree that threats and – genuine, meaningful – incitement to violence are not covered by the right to free speech. Many of those punished in recent days have been convicted for exactly those things. But not all have. We shouldn’t be surprised by that. For our legislation goes much wider than that, to criminalise far wider categories of speech and messaging. It’s now being used, brutally, by a government that has little real regard for free speech.
Take some examples. The 2003 Communications Act criminalises “grossly offensive” messages, even sent in private, and whether anyone reads them or not. Sentencing is tougher if messages are motivated by “hate”. People have been given prison sentences for (admittedly unpleasant) private Whatsapp messages.
Or the 1986 Public Order Act, which, broadly, makes it a crime to cause someone “alarm” or “distress” through writing or speech that is “abusive” or (in some circumstances) just “insulting”. It also criminalises messages likely, or intended, to “stir up” hatred on grounds of race, religion, or sexual orientation. In these latter areas, the Attorney General’s consent to prosecute is required, as a safeguard, but many such charges have been brought in recent days, so it looks as if the new Attorney General has given a very broad sign off. Perhaps the shadow attorney general would like to investigate, if it is not too much trouble?
And finally, we have our unfortunate Online Safety Act. This creates a new concept of “false communication” and makes it illegal to send a message known to be false and intended to cause “psychological or physical harm”. Newspapers and broadcasters are exempt, but individuals are not. Yes, “fake news” is now a crime in Britain, and people are being prosecuted for it.
This situation creates some very obvious problems. One is definition creep. “Grossly offensive”. “Abusive.” “Insulting”. “False”. “Stirring up.” Who says what they mean? The answer is judges and magistrates, using guidance from the Crown Prosecution Service. This currently says that they mean more than just offensive, satirical, or unfashionable, applying the standards of an “open and just multiracial society”. But who says what those standards are?
Another is the chilling effect. In a country like ours, with clear social and political problems related to immigration and community integration, one person’s fair commentary is another person’s “abuse” or “insult”. If you comment on different crime levels among migrant communities in the UK, or note that most of those on small boats are young men leaving one safe country for another, are you making a political point, or “stirring up” racial hatred?
Apart from the Online Safety Act, these laws were designed for a different world – one of green ink letters and abusive messages on voicemail. They are too broad to deal with social media, open to all, and with its own particular style – punchy, satirical, meme-based – where one person’s sharp comment is another’s abuse.
In my view, these laws should mostly be abolished or focused much more clearly on genuine incitement. Until that happens, and I’m not exactly holding my breath, our only protection is a government, an establishment, or a wider climate of opinion, supportive of free speech.
Unfortunately, we have no such thing. We know from the Covid era that the commitment to free speech is thin to start with. The Labour Party has now scrapped the law protecting freedom of speech at universities, and is musing about controlling social media further. The legal establishment seems to have a particular animus against free comment in the media (and if you doubt that, look at the way they have created a privacy law out of Article 8 of the ECHR virtually on their own authority).
The political and professional classes more broadly are obsessed with so-called misinformation or disinformation, and now have a new weapon in the “false communication” provision. And finally, society has developed a culture of avoiding offence and protecting people from seeing anything that might upset them, and hence of believing that some sorts of speech should be prevented.
We are heading towards a real crisis. There has always been some censorship in Britain, more’s the pity, but until recently it was artistic and cultural, not political. We prided ourselves on being a free country in which we could speak freely. We simply cannot say that now. We are, in fact, all vulnerable. Say the wrong thing in the wrong way at the wrong moment, and any of us might find the police at our door.
That has never been the British way. Allow it to persist, and, yes, the same statues may still be standing in the same tree-muffled squares – but we will be a different country.
