Chapter 3: Crime and communication: do legal controls leave enough space for freedom of expression?
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A number of high-profile cases have demonstrated the way that expression on the social media can be subject to criminal prosecution. Laws designed to regulate public order, nuisance telephone calls and harassment have been applied to internet speech. While there is no case for suggesting that internet speech should have an immunity, it is notable that remarks made on social networks in the heat of the moment (albeit grossly offensive) have been subject to criminal prosecution. Had such remarks been made in another social setting, such as a conversation in a cafe, it is unlikely that they would have come to the attention of prosecutors. The recordable and searchable nature of the digital media makes it more likely that law enforcement officers will notice informal conversations and the recorded data provides evidence for prosecution. In addition, the criminal laws in question are often broadly worded and could potentially apply to a wide range of expression. The practical result of these trends is an extension of the criminal law into people’s everyday conversations, which raises issues about the protection for freedom of expression. The first issue is whether the use of the criminal law is proportionate in such cases? While criminal prosecution will be justified in the most serious instances of abuse and harassment, alternatives to the criminal law might be considered as an option to deal with other cases. Another strategy may be to increase the threshold of harm required before a prosecution can be brought. To some extent, the DPP’s guidelines on social media cases have addressed these issues in practice. That does not, however, resolve the free speech concerns in relation to the substance of the law. A second issue for freedom of expression is that most of the offences being applied to the social media do not have an explicit public interest defence. As a result, the law could be invoked against those expressing political views. While the free speech issues could be incorporated into the interpretation of the law, an analogy with public order cases demonstrates why such an approach is likely to be deficient. When approaching such issues the courts have often assessed freedom of expression from the perspective of the audience, and placed little weight on the participation rights of the speaker. The courts have in some cases treated those types of speech that engage the criminal law as unnecessary abuse or noise, rather than an exercise of expression rights. While the matter has not yet been fully tested in the courts, there is a danger of a similar approach being taken in relation to internet speech. It will be argued that such an approach would be too dismissive of the speech rights at stake. Keywords: freedom of expression; malicious communications; offensive communications; prosecution policy; public order law

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