This is potentially disturbing and seems to be part of a trend in Western Europe:

Following a report of a series of alleged offensive online posts relating to Syrian refugees living in Rothesay on Bute, Police Scotland confirmed on Tuesday that a 40-year-old man, understood to be from the Inverclyde area, had been arrested under the Communications Act… Following the arrest, Insp Ewan Wilson from Dunoon police office said: “I hope that the arrest of this individual sends a clear message that Police Scotland will not tolerate any form of activity which could incite hatred and provoke offensive comments on social media.”

In the United States, the only way this sort of arrest might be justified would be if the social media postings were used to specifically call for an imminent act of violence against refugees. That would be tantamount to enforcing our own very limited “incitement to riot” exceptions to our free speech policies.

But until we learn that’s what was involved in this incident, I’m going to assume that the Inverclyde man had been posting speech that did not rise (or sink, depending on how you look at it) to that level. After all, the police officer is quoted as saying that authorities [emphasis mine] “will not tolerate any form of activity which could incite hatred and provoke offensive comments on social media.” Sounds like he’s talking about language that might invoke a feeling (hatred) and incite more of the hateful speech.

About a decade ago, I wrote a post discussing the fact that Western Europe’s free speech protections tend to be less strong than our own in the case of libel laws. This recent incident was not about libel, however; it was about a violation of a statute known as the “Communications Act,” which has the following provisions:

Section 127 of the act makes it an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network. The section replaced section 43 of the Telecommunications Act 1984 and is drafted as widely as its predecessor.

That’s awfully broad. But interim guidelines were later issued which tempered it somewhat (however, they’re only “interim” and “guidelines”; the statute itself appears to have remained broad):

On 19 December 2012, to strike a balance between freedom of speech and criminality, the Director of Public Prosecutions issued interim guidelines, clarifying when social messaging is eligible for criminal prosecution under UK law. Only communications that are credible threats of violence, harassment, or stalking (such as aggressive Internet trolling) which specifically targets an individual or individuals, or breaches a court order designed to protect someone (such as those protecting the identity of a victim of a sexual offence) will be prosecuted. Communications that express an “unpopular or unfashionable opinion about serious or trivial matters, or banter or humor, even if distasteful to some and painful to those subjected to it” will not.

Better. But wait:

Communications that are merely “grossly offensive, indecent, obscene or false” will be prosecuted only when it can be shown to be necessary and proportionate.

Leaves a rather large opening for the prosecution, doesn’t it? What’s more:

Revisions to the interim guidelines were issued on 20 June 2013 following a public consultation. The revisions specified that prosecutors should consider: —whether messages were aggravated by references to race, religion or other minorities…

So there you have it. A bunch of unclear guidelines that can be used to prosecute real incitements or to prosecute whatever you think is “hate speech,” if that prosecution is “necessary and proportionate.”

Again, it’s possible that this particular arrest was a proper one for something very egregious that amounts to incitement to riot. But I wouldn’t bet on it.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]



