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By Paul Bernal / 13 November 2012
The arrest of a young man on Remembrance Sunday, apparently for posting a picture of a burning poppy, is the latest case of “offensive” online speech being pursued by the law. So yesterday’s panel discussion on the subject at the Internet Service Providers’ Association (ISPA) annual could not have been better timed.
There was an excellent range of speakers on the panel: Keir Starmer QC, the Director of Public Prosecutions, Helen Goodman MP, Labour’s Shadow Culture Minister, Facebook’s Director of Policy Simon Milner, and Index’s CEO Kirsty Hughes. A lot of ground was covered — but the impression left at the end of the session was one that should leave advocates of freedom of speech more than a little trepidation.
Dan Tench, the chair, began by outlining the variety of potential offences — from the increasingly infamous Section 127 of the Communications Act 2003 to the lesser known Malicious Communications Act 1988, the act under which the young man was arrested for his poppy burning picture on Sunday. It was, and is, a somewhat depressing and confusing list of often broadly worded laws: even lawyers struggle with it, so the difficulties of the average Twitter or Facebook user — or even the average police officer — can have in understanding it are hard to overstate. And the law really matters: Keir Starmer was clear (and correct) throughout that the CPS’s job is to prosecute in accordance with this law. Simon Milner was similarly direct: Facebook’s policy is to obey the law. Facebook may be an American corporation, but they’ll follow local laws when dealing with speech: in Germany, for example, laws on Holocaust denial, in the UK, all the multi-faceted laws on offensive speech.
Having said that, the one piece of potentially good news to emerge from the panel was that Keir Starmer announced that his office would be producing interim guidelines covering offensive speech online in the next few weeks. The contents of those guidelines will be interesting — Starmer seemed to suggest that they would outline how the law should apply, and how public interest in a prosecution would be determined. There would not, and indeed should not, be a shift in public policy as a result — though for differing reasons different members of both the panel and the audience would probably like to see that.
That’s where the worry for advocates of free speech should come in. Kirsty Hughes spoke eloquently about the key problems with our current approach, about how what we do in the UK is watched very carefully by those in more repressive regimes and used to justify their oppression, about how there seems to be a growing sense of enforcing some sort of “orthodoxy”, and about how people seem to think they have a right not to be offended. But Starmer, to an extent, didn’t seem to acknowledge that there might be a problem — instead he talked of the difficulty of dealing with delicate issues like the offensive remarks concerning the death of April Jones — while Helen Goodman MP’s approach seemed to be that we hadn’t gone nearly far enough in controlling speech.
That was the most depressing part of the panel. Though she had just returned from the Internet Governance Forum in Baku, and claimed to have been moved by and understood the crucial role played by freedom of speech on the internet in the struggles against oppression in Egypt and Azerbaijan, she didn’t seem to see any connection at all between the control of speech in the UK with the control of speech elsewhere. Freedom of speech, it seemed, was important in other places, but not in the UK. Indeed, the time she showed most emotion was her disappointment to discover that a charge of harassment required a pattern of behaviour, rather than just a single incident.
If the panel is any indication, we can’t expect a great improvement in the treatment of “offensive” speech online — and incidents like the current poppy-burning story can only be expected to recur. I hope that isn’t the case — just as I hope that politicians like Helen Goodman MP can be persuaded to see the importance of freedom of speech in practice as well as in principle. This subject will keep on raising its head until something changes — and free speech advocates should keep on making sure that it does.
Dr Paul Bernal is lecturer in IT, IP and media law at the University of East Anglia. He tweets from @paulbernalUKCommunications Act 2003 | CPS | DPP | Facebook | Keir Starmer | Malicious Communications | Twitter