The online freedom of speech pickle: it’s only getting more complicated

Figuring out when trolling becomes dangerous abuse or when a deeply held political opinion comes hate speech is difficult. Add in factors like anonymity the interference of government in a space that was philosophically intended to be open and you can see why freedom of speech online is such a muddy issue. Things aren’t about to get any clearer either.

Previously Memeburn has reported the concerns of Vint Cerf — one of the fathers of the internet and Google’s chief internet evangelists — about an authoritarian trend in emerging markets including India, Brazil, Russia, South Africa and of course, China. More recently however, it seems clear that the UK is also scratching its head over online freedom of speech, and appears to be increasingly settling on a less than liberal position.

Two incidents in the last month show how UK courts are criminalising online speech that, while the content was extremely distasteful, offensive and unpleasant, arguably doesn’t fall under the limitations on freedom of speech. In one, Azhar Ahmed was fined £300 and given 240 hours of community service for “a grossly offensive communication”. He avoided a jail sentence by pleading guilty and removing the offending Facebook post.

The post was made in the context of six British soldiers dying in Afghanistan and raised concerns about the impact the war had had on innocent Afghanis and ended by saying “all soldiers should die and go to hell”. The judge who carried out the sentencing said that although the law should not stop political opinions from being expressed, the test was whether they are “beyond the pale of what is tolerable in our society”.

And there’s the rub. In the UK, as in a number of other countries, freedom of expression is only legally curtailed by incitement to war or violence, or encouraging hatred based on race, ethnicity, gender or religion.

So as Jerome Taylor writes about the case in the Independent: “Free speech is not just the right to say nice things to people. It is also the right to be nasty, unpleasant, boring, unfunny and stupid. If you start to criminalise the offensive, you pave the way for both real and self-censorship.” He adds that what is considered tolerable by society is “a very slippery slope because what society finds tolerable at any given time changes or evolves.”

In the second case in the UK, 19-year-old Matthew Woods was jailed over some extremely inappropriate online comments and “jokes” about missing children. As Taylor points out: “By the looks of it neither Woods nor Ahmed are amiable or eloquent people. But that doesn’t mean we should be locking them up or giving them criminal records for the stupid things they say.”

Jimmy Wales, founder of Wikipedia and staunch campaigner against the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) in the US concurs with Taylor about the danger of over-enthusiastic criminalisation of offensive speech leading to self-censorship. He points to China, where his concern with bans on certain Wikipedia pages is less about the content that is blocked and more about a red flag to Chinese bloggers in terms of what they can and cannot say.

“[The Chinese government] does understand that when it blocks the Liu Xiaobo page, it doesn’t for a second believe that it’s stopping people from knowing who won the Nobel Peace Prize that year, but what is quite effective is that it has a chilling effect on the domestic conversation,” says Wales.

Many have argued, specifically with regards to some of the vitriol that bubbles up in news sites’ comments pages, this sort of thing is better out that in. Rather recognise, acknowledge and deal with the unresolved and unpleasant issues in society than suppress them and have them pop up, out of control and unexpectedly like some sort of a Whack-a-mole game.

How this pans out around the world is still to be decided. Google and Twitter are feeling their way by recognising local censorship laws without penalising their global community. The move, for the most part, has been lauded as less censorship rather than more. Likewise, the issue of employers penalising employees for inappropriate and offensive comments on social media platforms is still open. But, when behaviour starts being criminalised, and constitutional rights started being dented, it is clear that there is more at stake than ranty tweets or offensive Facebook updates.