Adam Wagner is good on the inappropriate use of the law to enforce what should properly be considered matters of politeness in online discourse:
The problem is that once the state starts policing speech and thought, this tends to be the thin end of the wedge. People become frightened to say what they feel and instead say what they think they ought to say. Such a climate would undoubtedly place a chill on the wonderful, bizarre, entertaining, sometimes concerning but always interesting world of social media. And that would be bad for everyone.
High-profile recent cases include that of Azher Ahmed, who was convicted for writing on Facebook that British soldiers should "die and go to hell" - an opinion that many people will not agree with, but which surely struggles to reach the threshold of "grossly offensive" under s 127 of the Communications Act, which was the law used against him. Ahmed was "let off" with community service, because he apologised and deleted the comments soon after they were made. The district judge, however, suggested that the remarks in themselves were sufficient to send him to jail and that Ahmed had "failed to live up to" the "responsibility" that comes with freedom of speech. His culpability was increased, in the judge's view, because someone else had taken it upon themselves to circulate the address of someone else with a similar name, and various thugs had intimidated an innocent family at home as a result.
Meanwhile, 20 year old Matthew Woods has been jailed for twelve weeks for making tasteless jokes about missing five-year-old April Jones. Not a nice thing to do, but it seems to have amounted to much more than "a moment of drunken stupidity. When the comedian Justin Lee Collins gets community service for conducting a sustained campaign of violent harassment against his former partner it seems hugely disproportionate. But perhaps it's a different rule for comedians. As Adam Wagner notes, Frankie Boyle hasn't yet had his collar felt for any of his outrageous "jokes", the latest of which suggested that the reward for all Jimmy Savile's charity work will have been "the opportunity to shag Madeleine McCann in heaven".
The DPP is currently (with some help from Twittering lawyers) consulting on new guidelines on where to draw the boundary of "acceptable speech" online. The problem doesn't just concern the exciting new world of social media, though. Sections 4 and 5 of the Public Order Act 1986 is still with us, criminalising any behaviour liable to cause "harassment, alarm or distress", a provision which would appear to be a stranger to the entire concept of free speech. Barry Thew has today been jailed for eight months under the POA for wearing an offensive T-shirt.
Prosecutions for "offensiveness", whether they involve Facebook messages or slogans worn on t-shirts, amount to a legal doctrine that people have a right not to have their feelings hurt, indeed that it should be a crime to cause another person emotional distress. That, of course, is the argument made by those who want further restrictions on free speech where religous sensibilities are involved, something akin to a new law of blasphemy. In that case, the danger of protecting religion from criticism has, so far, remained sufficiently obvious to keep the the opponents of free speech at bay. But it's surely inconsistent to deny the deeply felt religious convictions of people the legal redress offered to the more immediate emotions of bereaved relatives and colleagues of soldiers or police officers. It's certainly inconsistent to lock up "offensive" T-shirt wearers while condemning Russia's treatment of the punk band Pussy Riot for upsetting Orthodox worshippers at the Cathedral of Christ the Saviour.
Chief Inspector Williams made a point of noting that "the overwhelming response from the public, who have inundated us with messages of support and condolence, proves that Thew is the exception and not the rule and our communities were right behind us at our darkest hour." This is obviously true; but it's not obviously a reason to prosecute and jail someone for not sharing the general opinion. On the contrary, the existence of a social consensus of acceptable behaviour is more than adequate in itself without recourse to the law. If bereaved relatives are upset by isolated incidents of unpleasantness, are they not also comforted by the support and good-will offered by many thousands of people unknown to them, and do not messages of the latter sort outnumber the former many, many times?
I find it especially disturbing that in many of these cases prosecutions have been brought after members of the public reported the offensive conduct to the police. Rather than demonstrating their personal distaste for the sentiments by condemning the culprit to his face, people preferred to do so by demanding criminal sanctions. Wagner notes that a group of around 50 members of the public cheered when Woods was sentenced for his Facebook message. Free speech is not particularly popular in modern Britain. The public here has never been terribly liberal, but I think we're also dealing with the erosion of the idea of social space as something self-policing and independent of the state, just as politicians in recent years (not just New Labour ones) have often been unable to distinguish between disapproving of something and wanting to ban it. The gap between "I don't like X" and "people who do X should go to jail" should be a lot wider than it seems to have become.