United Kingdom officials are mulling over harsher criminal penalties for people who say mean things on social media. They are operating under the inevitably abuse-prone assumption that these offensive comments cause psychological harm to people.
Even as the government is threatening a speech crackdown, a case up in Glasgow, Scotland, shows that it is already more than willing to arrest people for saying things officials find offensive.
In the early days of COVID-19, Captain Sir Tom Moore became a “national inspiration” at the age of 100 for his resilience during lockdowns, walking laps in his garden to raise money for National Health Service charities. He was knighted in the summer of 2020. Then he died in February 2021 due to COVID-19 complications. Due to the medication he was receiving for pneumonia, he was unable to receive vaccinations, his surviving family explained.
Not everybody was impressed with Moore’s activism or military background. The day after Moore died, Joseph Kelly of Glasgow tweeted out “The only good brit soldier is a deed one, burn auld fella, buuuuurn.”
Kelly was charged with violating the U.K.’s Communications Act for a “grossly offensive” tweet. On Monday, he was convicted.
Such a conviction could never happen here in the United States (as long as courts continue to enforce the protections of the First Amendment). The U.K.’s laws protecting free speech are not nearly as broad. The Communications Act, passed in 2003, makes it a crime to “send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network.” Those who violate the law face fines and a potential jail sentence of up to six months.
That Moore was dead and therefore could neither hear nor feel threatened by the message was not relevant. What mattered is that other people—particularly the people with the power to enforce the law—heard it and were offended. Kelly’s lawyer attempted to argue that while his comment was “unsavory,” it didn’t rise to the level of offense. The lawyer also noted that Moore was not a member of a “protected class” due to his race or ethnicity (not that it should matter, but in the U.K. it does) and Kelly did not incite violence. The government actually had a 72-year-old woman who saw the tweet testify how much it “hurt” her to “to see someone wishing British soldiers dead.”
This is the law now, yet the U.K.’s Law Commission is actually looking to give police and prosecutors more authority to punish people for what they say. In July, the Law Commission recommended a new offense that would penalize speech on the basis of whether the message “is likely to cause [psychological] harm” to those who read it.
This week, The Telegraph reported that the government is indeed considering these new harsher speech controls, bolstered by a potential two-year prison sentence. The proposal, The Telegraph notes, merely requires that the person writing the message was aware of potential harm or intended for the message to cause harm. It does not require the message to actually harm anybody.
Furthermore, lawmakers are considering a proposal that would potentially punish social media and communication platform managers with possible criminal convictions and jail sentences should they refuse to cooperate with government officials in providing personal information or data about users who run afoul of these speech laws.
Because the bill is still being hammered out, we don’t know precisely what sort of cooperation the government may try to demand regarding users. The draft of this Online Safety Bill, published last year, is an oppressive 133-page list of demands for social media companies. It attempts to both require that companies eliminate any illegal content but also not eliminate any content that isn’t illegal, and document everything about any complaint they receive. They also have to protect users’ privacy—unless, of course, it’s the government demanding information from them about the users.
There are a host of special exemptions for journalists, which makes for some strange incentives. If you want to get away with saying things the government deems dangerous or offensive, just get a job at a media outlet, which likely gives you a larger audience than if you were just some guy tweeting it out.
We do know that some U.K. politicians have been trying to rid the internet of anonymity and shut down the use of end-to-end encryption that keeps third parties from reading user data and communications. These protections can keep people safe from harassment in their private life and protects their information from criminals. But by their nature, anonymity and secrecy make it harder for the government to prosecute people for speech officials deem offensive or harmful. Buried in this safety bill draft is a section that would make it an offense for a person working at a covered social media or communications platform to respond to a government information request with encrypted information that the government can’t read or decipher. Senior managers of companies who do not comply with these information demands could face fines and up to two years in jail.
Kelly’s conviction over a single mean tweet, partly on the basis of the outrage of some elderly woman, should make it clear to everybody that these laws are absolutely not about tracking down and punishing egregious violators for campaigns of harassment and threats. These laws are dangerous and will ultimately cause much more harm to the citizens of the U.K. at the hands of police and courts than angry comments directed toward powerful government officials and celebrities will.
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