Free Speech: A Bit of a Nuisance

February 13, 2013

SCL has an important event tonight which I dearly wish I could attend. {David Allen Green is telling the tale of the Twitter joke trial and asking ‘what next for social media and legal liability?’:} I am sure that there will be informed debate and that the focus will be on the emerging policy guidelines from the CPS and the forthcoming amendments to the Public Order Act.

That’s all fine, and genuinely important stuff. But there is another threat to the use of social media that may become of increasing importance. The {draft Anti-social Behaviour Bill:} includes provisions which could drive a coach and horses through any attempts at reasonable policy guidelines emanating from the DPP or any other Westminster body. It includes the following in clause 1:
‘(1) A court may grant an injunction under this section against a person aged 10 or over (‘the respondent’) if two conditions are met.
(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person (‘anti-social behaviour’).
(3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.’

Applicants for such orders will include local authorities and housing providers as well as the police.

Clause 38 provides for the issue of community protection notices. These may be issued in respect of conduct which is having ‘a detrimental effect, of a persistent or continuing nature, on the quality of life’ of those in a particular locality where that conduct is unreasonable. They will be issued principally by local authorities. It is an offence not to comply with such a notice and, as well as a fine being imposed, there is a power of forfeiture, perhaps of a computer.

I am wary of edging towards scare-mongering here. Of course, the Bill will not be aimed at social media and objectionable comments on community web sites. And of course the Human Rights Act requirements will apply to any exercise of discretion by local bodies and the police. But the Bill aims to push more responsibility for ‘policing’ anti-social behaviour towards local bodies. That is no bad thing. But it raises the question of whether such bodies are in the best position to judge, especially (as may well be the case) where they are the target of vitriolic attack online, for example where officials are accused of corrupt practices or targeting the paranoid. Such comments are practically a mainstay of local web site comments and many tweets.

A case in relation to ASBOs give me cause to wonder. ASBOs will be replaced by the measures in the new draft Bill but the principal aims will survive. In {i}Perry v Chief Constable of Humberside Police{/i} {[2012] EWHC 3226 (Admin):} an ASBO had been granted in respect of blog comments claiming that various figures in Perry’s village, including a mayor and a local police officer, had been guilty of corruption and perverting the course of justice. That was not the sole element in Perry’s behaviour but it was enough for the magistrates to consider it reasonable to include restrictions on his blogging such comments. The Divisional Court in {i}Perry{/i} pulled up the magistrates’ court on its analysis of the balance between Perry’s right to freedom of expression and the harm flowing from his blog posts (the ASBO was set aside). But the case illustrates the predilection for local courts to give greater weight to local irritation than perhaps the DPP might think appropriate when finalising his social media prosecution guidelines.

It is also worth pointing out that {i}Perry{/i} was a case brought under the current ASBO regime when the criteria for an order included that the behaviour in question had to be likely to cause harassment, alarm and distress not just ‘nuisance and annoyance’. And at least a court was involved.

I do not think that the local authorities and housing providers in the UK are staffed by thin-skinned jobsworths. But there are some. Is it hard to foresee a time when the new powers will be used to silence their critics or to guard one section of the locality from criticism that is thought to be a bit of a nuisance?

Perhaps the draft Bill would be improved by an explicit reference in each of the main sections to the need to protect freedom of expression. And it would not hurt to include explicit guidance on free speech online in any guidance code.