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The British government has said that in the UK the Internet is a latter-day Wild West, and that measures need to be taken to change it. It’s right, but not in the way you might think.

Whatever the government says, the problem isn’t what a few individual kooks say online. Few spend much time reading them; fewer still remember much of what they read. In any case, most of what they say isn’t a great deal worse or more wounding than the poisoned invective that used to appear regularly, and even more so at election time, in nineteenth-century US and English newspapers. Demanding the spending of more resources policing such things is a recipe for a massive waste of time, and for a cure worse than the disease.

No. To continue the Wild West analogy, the real problem in the UK is not with the lonesome gunslingers who remain undisturbed by law enforcement, but with the law that allows innumerable sheriffs to avoid trouble and guarantee a quiet life by locking up and running out of town anyone they regard as not the sort of man decent folks want to see there.

Britain doesn’t have the First Amendment to fall back on. The heavily qualified right that passes for protection of freedom of speech in the European Convention on Human Rights is a tame provision, subject to all sorts of ifs and buts, that gives governments a fairly free hand if they choose to penalise anything strongly disapproved of by any large group. What Britain does have is the Communications Act 2003, s.127. This criminalizes saying anything “grossly offensive” on any telecommunications network. There are also general provisions requiring courts to give heavier sentences for any crime evidencing perceived prejudice on account of race or religion. It won’t surprise you to know that this easily passes muster under European human rights law. And if you think it isn’t abused as a matter of course by government and those with an axe to grind, think again.

The problems are twofold. The main one is that almost anything can be regarded as “grossly offensive” to someone (and once it has been so found appeal courts don’t like to intervene). Furthermore, while penalties for the offence itself are often fairly small, any racial or religious aspect makes it a serious matter leading to heavy fines and a possibility of imprisonment. In the last year alone, apart from numerous thoughtless Facebook posters who have ended up before magistrates after posting obscenities about football players and the like (note that in the year to October 2017 UK police arrested well over 3,000 people, nearly 10 a day, simply for this offense), there have been three disturbing high-profile convictions. In a well-publicized farce this March, a YouTuber who taught his dog to perform Nazi salutes was fined a substantial sum by a dourly humorless sheriff (a low-level judge) in the Scottish rust-belt. He awaits an appeal, for the costs of which more sensible British people crowdfunded him well over £100,000 in a few days: but don’t hold your breath.

A Liverpool teenager who instagrammed a Snapp Dog lyric “Done Trippin‘” (which, in common with countless others, contains the word N---a) found herself curfewed for eight weeks by a court after a black policewoman saw it and complained. The fact that this lyric was regularly played publicly and was readily available online (my Google search took all of thirty seconds) counted for nothing. Most recently, a Youtube post denying the Holocaust landed the poster in court with a conviction, a five-month suspended sentence and a prohibition on using social media for a year. The case was immediately welcomed as showing that Holocaust denial would not be tolerated; and this despite the fact that Parliament has repeatedly refused to make Holocaust denial a crime in Britain, in the interests of free speech.

The other problem is the power this gives to the police and others quite outside the court system. Last August a supporter of right-leaning MP Jacob Rees-Mogg posted material mildly critical of Islam as a religion: the result was an unannounced visit of a couple of cops who ordered him to stop, and said he would be arrested for hate-crime if he carried on. And a couple of weeks ago a Member of Parliament, if you please, who received an email accusing her of treachery to her party and her voters reported her constituent to the police and told her not to do it again.

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How did Britain get here, particularly since even today there is some sense of the need for free speech, and a law that made it a crime to write anything grossly offensive would be too much even for our bossy bureaucrats? By well-meaning mistake, of course. The offense first saw the light 83 years ago in 1935, in order to deal with the male teenagers of the time who amused themselves by phoning (then entirely female) operators and saying, in childishly boring detail, what they wanted to do to them. When telephones became telecommunications and the law was updated in –when else– 1984, the law was carried over as a matter of course to cover anything sent over a telecommunication system. Job done: in so far as telecommunications now carried messages that were typed rather than spoken, it was now a crime for anyone to make offensive comments anywhere online, even in a private email. No-one realized at the time, of course: this was a mere tidying-up exercise. But they soon cottoned on, the prosecutions started of those who couldn’t be shut up any other way.

What has been the reaction to all this? A few have pointed out that we now live in a country where in the online forum, the one that matters, the great and the good can censor what they don’t like and condone what they do. But only a few. Central government has done nothing, apart from a vague promise from Culture Secretary Karen Bradley to make Britain “the safest place in the world to be online”. It’s long on rhetoric but short on detail, but one thing is certain: the project is not to improve on freedom of speech, but rather to increase restrictions on it further, by demanding that ISPs take down on their own initiative material regarded as undesirable. From the separate jurisdiction of Scotland last month we had a report from retired judge and prosecutor Lord Bracadale, mainly dealing with hate crime, but with a good deal to say about section 127. This is if anything worse. The wide ambit of the crime is airily dismissed. Prosecutors (yes, prosecutors) can be trusted to take decisions about who deserves to be punished; and there’s always the toothless European Convention on Human Rights for judges and magistrates to fall back on if someone goes seriously over the top. So that’s all right. Indeed, this Solon then wistfully speculates that it might be a good idea to increase the penalties, before noting, with what seems to be some regret, that that is something our devolved Scottish government can’t do.

The UK Government’s Department for Digital, Culture, Media and Sport, in charge of this fiasco, sports a hip blue and purple logo saying “Unacceptable offline, Unacceptable Online.” It might start from the opposite end, by repealing s.127 and saying that if it’s OK to be said offline it should be OK online also. Going back to the Wild West theme, what we want online isn’t more power to the sheriff. It’s more homestead laws to protect us from overbearing lawmen.

by Andrew Tettenborn

Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. He has written for Conservative Woman, Spiked and the Catholic Herald.

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