Outrageous Opinion on Social Media: The Correct Role of the Law – Oliver O’Callaghan

Barely a week passes without another spate of Twitter controversies; last week’s protagonists included the Youth Police Commissioner of Kent, Paris Brown, forced to resign over her past ‘youthful indiscretions’ on the social networking site; Irish cricketer John Mooney was reprimanded by his employer for some ill-considered remarks on the passing of Margaret Thatcher; while footballer Joey Barton was threatened with legal action over his wearily familiar and uncouth pronouncements on a fellow player.

The cases highlight once again the dangers of social networks in the spheres of employment and defamation, but more importantly they bring into focus a discussion that sometimes gets obscured in broader discussions of freedom of speech: how we treat statements of opinion, as opposed to revelation of fact, in both the criminal and civil courts.

In libel and privacy claims the central requirement is the revelation, to a third party, of factual information, be it true facts in the case of privacy, or the paradoxical ‘false facts’ in the case of defamation. It is the ability of the claimant to retain control over information in both cases that is pivotal, albeit for different reasons. By definition the offering of a pure opinion about someone’s privacy or character cannot fulfil the requisite requirement of factuality – the reason ‘ridicule’ should be banished from the law of defamation.

Against the very real, often irreparable, damage caused by the publishing of factual assertions in both privacy and defamation stands the protection of the civil law through the torts of libel/slander, breach of confidence and the nascent ‘wrongful disclosure of private information’. Yet the more subjective, ill-defined damage of ‘hurt feelings’ caused by the offering of opinions, insults or distasteful remarks, is increasingly attracting the full weight of the criminal law. This is a dangerous state of affairs indeed.

There have been a number of high-profile cases in the past two years where opinions or other non-factual statements, such as jokes or insults, have drawn the attention of the criminal law: Paul Chambers, the Nottingham Airport bomb Twitter-joker; Liam Stacey, convicted of racial abuse of footballer Patrice Muamba; Matthew Woods, jailed for setting up a Facebook pages dedicated to ‘jokes’ about Madeleine McCann and April Jones; and the young Twitter abuser of Olympian Tom Daley. Each of these cases, with their differing circumstances, allows us to draw out an understanding of how the law is, and should be, used to react to non-factual speech.

Keir Starmer, the Director for Public Prosecutions, announced recently that the guidelines for prosecution in cases of online abuse would be revised to take a more common sense approach, in particular to give consideration to those perpetrators who delete their ill-advised posts quickly and indicate remorse. Signs of such a shift were already in evidence in the decision not to pursue the prosecution of the Tweeter in the Tom Daley case last summer. And while this shift by the CPS, towards a sounder policy of pursuing only those prosecutions actually in the public interest, is to be welcomed, it does not solve the central issue of when, in principle, speech should be subject to criminal sanction. It is difficult to find anyone outside of the DPP’s office who thought the prosecution of the Paul Chambers was legitimately in the public interest, and a panel of three judges in the High Court ultimately agreed, quashing the conviction; however it is not beyond the realms of possibility to view a literal reading of Chambers’ joke as a threat, thus that case was much more about sensible interpretation than a matter of principle. The online abuse cases are more difficult.

The crux of the matter is essentially whether we should be using the criminal law to police the realm of social interaction or to suppress unsavoury opinions. In the ‘real’ world (as opposed to the virtual one) insult or even abuse should not attract the law until it reaches a tipping point where it ceases to be about the content or message of the communication (i.e. free speech/expression) and becomes an action, for example, harassment or incitement to violence. We have sufficient legislative protections against such transgression in the Harassment Act 1997 or the Public Order Act 1986. Equally there are perfectly legitimate and pragmatic time and place controls on speech, for example there is no right to protest in someone’s private home, or in a residential street through a loudspeaker in the middle of the night.

The problem arises when the restriction is founded on the content of the message in the expression. This dangerous trend began with the aforementioned 1986 legislation making incitement to racial hatred (short of any physical or criminal threat) an offense, and was extended through various Acts of the Blair government including the Racial and Religious Hatred Act 2006. In the ‘real’ world these provisions appear to have been used somewhat restrictively – which is not to justify their existence – but the difficulty for virtual or online communities is the extension of these principles to online communications through the Communications Act 2003, particularly s.127 making an offence of sending messages “grossly offensive or of an indecent, obscene or menacing character”.

Two intersecting circumstances make social networks and blogging sites particularly fecund ground for this type of offence. The first is the phenomenon (worthy of psychological and sociological research) that people are much more willing to act and speak in an outrageous fashion from the distance or anonymity of their keyboard and internet connection, articulating thoughts/opinions that normal ‘real-life’ social convention would prevent. The second circumstance is the permanency and publicity of these communications; they are much more widely seen across the internet, and even a swift deletion cannot prevent digital recall or a ‘print-screen’ saving of evidence. Thus situations occur begging an official response to incidents that would have never occurred or have been quickly forgotten in traditional social interactions. This state of affairs is exacerbated by the fact that the Communications Act preceded Twitter, Facebook and the proliferation of blogging and as such was never designed to regulate social media.

In light of this it is incumbent upon us to question whether the criminal law is the right way to police these situations, and even more fundamentally whether it is ever right to restrict the expression of opinion in speech. In both cases I would answer in the negative. In the latter consideration, embarking down the road of content regulation of speech is replete with hazards. The law very quickly finds itself making value judgments about what is or isn’t legitimate expression. Even opinions or insults with little redeeming social/political value should not be restricted in a society that allows robust debate. The passing of Holocaust denial laws in many European countries is not that far removed the UK’s current race hate legislation, and shows how political and historical debate can be stifled. Regardless of the abhorrent nature of such opinions, no liberal society should ever ban the expression of any political belief. This aspect of expressive liberty harks right back to the Millian maxim that no opinion should ever be banned because by definition it is not objectively disprovable.

Online, as anywhere else, any unwarranted factual disclosures are still subject to the civil law in privacy and defamation, or the criminal law in cases of contempt of court or revelation official secrets, for example. But the very purpose of micro-blogging and, to a slightly lesser extent, social-networking sites is to allow the free unfettered expression of opinion. This is not to deny that harm can be done by racist or insulting speech, but not all harm should draw the ire of the law; robustness and a thick skin are often needed instead.  Just as in the real world, offense, ill-advised conjecture, and distasteful opinion are part of a free society, so too in the virtual world. The evolving terrain of the online public sphere is often distorted by the unnecessary callousness of the communicator and the permanence and publicity of the communication; but just as real-life human social interaction developed and now relies on a conventions and certain elasticity of ‘give and take’, so too will the virtual social sphere evolve its own rules and etiquette. The examples in the introduction above show how non-legal sanctions can have an effect on burgeoning online conduct.

Twitter and its ilk actively encourage an uncensored, unfiltered, and often unthinking deluge of opinion, but equally it is a world of voluntary participation – users can withdraw at any time. The internet attracts the erudite and the troglodyte alike, in reacting to the diverging quality of opinion it should be the role of social censure, rather the criminal law, to create a civilised online society.

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London