the problem with using public order laws to govern online speech

Scotland’s new hate crime legislation got here into pressure on April 1, sparking instant controversy over its potential results on freedom of speech and expression, particularly on-line. The Hate Crime and Public Order (Scotland) Act expands on present legal guidelines about crimes which have the chance to fire up hatred, in Scotland solely.

A “hate crime” itself just isn’t its personal particular offence below present legal guidelines, or the brand new legislation. However in case you are discovered to commit one other crime (for instance, assault) and it’s confirmed that this was based mostly on hostility towards somebody’s protected attribute (often race, faith, incapacity or sexual orientation) you could be given a harsher sentence.

The brand new legislation in Scotland introduces the offence of “stirring up hatred” – both in individual or on-line – associated to to age, incapacity, faith, sexual orientation, transgender identification or being intersex. This doesn’t prolong past Scotland.

A stirring up offence is dedicated if somebody behaves in a method that the common individual on the road would think about to be threatening or abusive, and that behaviour relies on the sufferer’s protected attribute. To seek out somebody responsible, it should be confirmed that their goal or objective was to fire up hatred. This can be a excessive threshold and tough to show.

Alongside threatening or abusive behaviour in individual, the legislation criminalises sending such communications on-line. This has been essentially the most controversial change. Critics concern it may hurt free speech, particularly on-line, the place context is every thing, however is commonly misplaced.

Of specific concern have been discussions over transgender identification – creator JK Rowling challenged police to arrest her over a collection of posts describing transgender ladies as males, although police say this didn’t quantity to against the law.

However ought to a legislation like this even be used to control on-line speech?

Stirring up offences on-line

The rationale behind public order laws, together with the brand new Scottish legislation, has at all times been to keep up public order throughout a time of dysfunction. It’s tough to argue that on-line feedback can quantity to prison offences that threaten public order.

Public order prosecutions of people that make hateful or prejudicial feedback on-line are uncommon – and profitable convictions even rarer. There are solely a handful of circumstances within the public area to make use of as examples.

In 2012, Liam Stacey, a scholar, was sentenced to 56 days in jail below the Public Order Act 1986 for sending tweets supposed to fire up racial hatred aimed toward footballer Fabrice Muamba. As I and different authorized students have argued, whereas Stacey’s tweets have been clearly abusive, they by no means threatened public order. And but, he was convicted of a public order offence, below a legislation enacted 20 years earlier than Twitter even existed.

The act was additionally efficiently used to prosecute 45-year-old Wigan man Stuart Sutton, who obtained a 16-month custodial sentence in 2022 for posting anti-Semitic and racist commentary on-line.

Distinguishing between intent to fire up hatred and speech supposed to tell reasonably than offend is extremely complicated, particularly on-line the place proving public order is below menace is close to inconceivable. Certainly, speech supposed to tell is protected below the European Conference of Human Rights, even when it could possibly be construed as racist.

Generally, on-line feedback have been efficiently prosecuted below different present legal guidelines, akin to communications offences.

Following England’s defeat within the 2020 Euros, three individuals have been arrested for public order offences regarding stirring up racial hatred. However, within the occasion, every was later charged and convicted of sending a grossly offensive message in violation of the Communications Act, versus a public order offence.

Scotland had one other legislation that dealt particularly with threatening communications, in addition to behaviour at soccer matches, with provisions in place to uplift sentencing for communications grounded in hate. This legislation was used 32 occasions, and was later repealed following considerations that it was intolerant and unfairly focused soccer followers.

In England and Wales, provisions such because the Malicious Communications Act and the Safety from Harassment Act have been used to prosecute individuals for offensive feedback on-line. The Sentencing Act additionally permits the courts to “uplift” an individual’s sentence below any prison provision, if their offence is confirmed to be aggravated by hate. That is used far more generally than particular public order offences.

Preventing hate on-line

Scottish authorities officers have hailed the brand new legislation as a major step ahead in defending individuals from hate and prejudice. The reporting of hate crimes throughout Scotland has been comparatively low in comparison with different jurisdictions.

However there’s little proof that the offence of stirring up hatred itself is efficient in tackling on-line hate, which is definitely on the rise. The truth is that prosecutions for dangerous on-line speech are prone to fall below different present legal guidelines.

If we actually need to deal with the rise in hate on-line (which latest debates appear to recommend we do), public order laws and the burden of the prison legislation won’t ever work. It is just by means of open and public debate and higher training that we are able to enact change.