Casual comments and legal controls: watch what you say online – Jacob Rowbottom

After a number of high profile prosecutions, most people are now aware that what you say online can have serious consequences. Cases involving racist and offensive comments on Twitter have reminded people that several criminal offences can regulate such expression. The most prominent of the cases, the conviction of Liam Stacey under s.4A of the Public Order Act 1986, has provoked the most debate, largely about severity of his sentence. In a recent comment piece, Victoria Coren makes a different point and asks whether s.4A is applicable in such a case, given that the statute provides an exception for communications where the sender and recipient are inside a dwelling.

A simple answer is that s.4A has been applied to digital communications in a number of cases. In S v. DPP [2008] EWHC 438 (Admin). the district judge held (and the conviction was upheld by the Administrative Court) that ‘any person who posts material on the Internet puts that material within the public ambit’. So it now seems that writing on a social network from within the home can fall within the offence. But there is the separate question of whether the section should apply. Section 4A was passed to deal with disorder arising from speech and behaviour in public places. Whether that rationale is transferable to speech on the internet is debatable. A related point is that in Dehal v CPS [2005] EWHC 2154 (Admin), the court stated that a prosecution under s.4A would be unlawful ‘unless and until it could be established that such a prosecution was necessary in order to prevent public disorder.’ It is not clear to me how this requirement applies in the context of digital communications, and whether the point has been argued before the courts in the recent cases.

The s.4A offence is just one example of a law that was designed to regulate a specific sphere of activity now being applied to digital speech in general – which includes casual comments intended for friends and things said in the heat of the moment. The recent prosecutions show that similar issues arise in relation to other criminal law offences. Peter Copeland was convicted for sending racist tweets under the Malicious Communications Act 1988, which was enacted to control poison pen letters. Joshua Cryer was convicted for his tweets under s.127 of the Communications Act 2003, an offence that was originally used to regulate offensive phone calls (and which was applied in the Twitter joke trial).

On the top of these criminal offences, those posting messages on blogs and social networks can find themselves subject to the of defamation, as the recent ruling in Cairns v Modi reminds us.

This means that a person speaking online is now exposed to public order laws that traditionally regulate speech in public places, to laws that are commonly used against the mass media, as well as all the laws governing poison pen letters and nuisance phone calls. It is true that laws need to develop and be applied in new contexts. However, this trend means that laws that have traditionally regulated separate types of activity now seem to converge and regulate the same digital communications. People speaking blogs and social networks are regulated by a significant number of laws, often couched in broad terms, coming from different directions.

While these various laws appear to have broad reach, in the past only a limited range of speech would ever have faced prosecution. People’s conversations among friends were generally off the radar. Ill-judged and offensive remarks would soon be forgotten. With digital communications, the online equivalent of people’s everyday speech remains stored and searchable. Casual conversations can be recalled after the event and people can be held to account for what they said. As a result, more of what people say is likely to be come to the attention of prosecutors and litigators. A lot more of people’s speech is now subject to a wider range of law.

Obviously, given the sheer number of communications made each day on social networks, there is no possible way to enforce these laws uniformly. There are simply not the resources to prosecute all those that could fall foul of the letter of these laws. The result is that those people that are prosecuted for what they post or tweet may seem unlucky for being singled out, and the criminal penalty may seem heavy handed. Yet at the same time, the limits on police resources mean the laws cannot offer much protection for most people that are subject to persistent abuse over the internet, which in some cases may need some legal response. The situation is unsatisfactory from the perspective of the speaker and the victim.

Finally, there is the issue of freedom of expression. Much of jurisprudence on Article 10 is focused on protecting speech that is of “high value”, such as political speech on matters in the public interest. Courts tend to give strongest protection to expression on political matters, and for the most part I think they are right to do so. But that offers little support to the everyday conversations that people engage in online, which may have nothing to do with politics, policy or any other public interest topics. In an academic article to be published over the summer, I look at the trends outlined above and argue that free speech needs to offer some protection for things people say in the heat of the moment or when letting off steam on any topic, no matter if they regret what they say later. The protection need not be absolute and some proportionate sanctions may be appropriate. However, an ill-judged comment made with little thought should not result in a criminal conviction or hefty legal expenses.  People should use digital communications responsibly, but saying something you might later regret should not have life changing consequences. That much should form part of the right to speak, not just on high-minded matters, but also to vent and converse.

 Jacob Rowbottom is a Fellow in Law at University College, Oxford.

‘To Rant, Vent and Converse: Protecting Low Level Digital Speech’ will be published in the Cambridge Law Journal, Vol. 71, Issue 2.