Scaring people into compliance and controlling the public discussion with vaguely worded laws and campaigns of moral panic.
Back in the 1980s, the police were desperate to secure convictions against BBFC-approved films in the Video Nasties debacle. The idea was cynically simple – if it could be shown that the BBFC were passing films that courts considered to be obscene, it would undermine the censor’s authority and cause a knee-jerk reaction within the Board to tighten up their rules on sex and violence. A couple of X/18-rated films did indeed find their way onto the final Nasties list – Tenebrae and House By The Cemetery were condemned in their cut BBFC versions. But by and large, it was an unsuccessful campaign – furious efforts to have The Evil Dead and Possession convicted failed, even though the latter was hauled through the courts again and again, each acquittal counting for nothing (whereas a single conviction was seen as precedent-setting – funny, that). The BBFC, of course, folded like a deck of cards anyway, tightening up their already stringent rules, especially for home video.
I am reminded of this because it seems that police forces are doing much the same when it comes to online hate speech, particularly on social media sites. Hate speech is a very strong accusation to make against someone, and we might reasonably think that people should only be arrested and charged under the most clear-cut of circumstances – a call to arms against groups or individuals, violent libel, the most extreme of abuse. Acts that are clearly and blatantly already illegal. But it seems the police are very keen to expand the definition of hate speech to a point where it ceases to have any meaning. It’s not simply the increasing use of the rather dubious concept of a ‘non-crime hate incident’, where forces will investigate people for making legal statements that someone else – maybe not even the person that the comments were aimed at – has been offended by. It’s the increasing attempts to actually secure convictions against people for merely expressing unpopular opinions.
This might be someone expressing a heartfelt – if often woefully misguided – belief that goes against current orthodoxy. It might be someone insulting another person during one of those heated arguments that social media is so good at encouraging. It might be mockery, or it might be bad taste humour. But if it is aimed at one of a constantly expanding group of people with protected characteristics or if it is simply too extreme, then the police will be very keen to arrest you, haul you through the courts and have you convicted.
You might like to think that this is the police trying to make up for years of bigotry and ill-treatment of just about anyone outside their own narrow social group – the history of police corruption and their assorted and extensive phobias and isms is long established. It might be easier to list the people who weren’t targeted for mistreatment by the cops in years gone by than those who were. But I fear that this is just another side of that same coin – it’s less about protecting the vulnerable from abuse and more about cowing critical and contrarian voices into submission. The targets may have changed, but the intimidation tactics remain much the same.
This matters because, as with the Video Nasties cases, it is ultimately little more than a shameless power grab. As the government’s outrageously repressive Online Harms Bill makes its way slowly into law, there is a need to show Parliament, the media and the public that this is a necessary clampdown on a major problem rather than a naked assault on free expression from power-crazed authorities who hate the very idea of unfettered, unmonitored communication. The somewhat spurious claims that we need laws against end-to-end encryption on private networks to prevent terrorism or extremism or child abuse or trafficking – basically whatever secretive group scares the public the most – will only take things so far. What the authorities also want is to control what people say on public platforms.
The fact that people are already being convicted for online hate speech, incitement, threatening behaviour, harassment and other existing crimes surely suggests that existing laws are already in place to deal with those who go ‘too far’, but for authoritarian governments and police forces, there is no such thing as too much legislation. People need to be convinced that the existing laws are simply not fit for purpose. More controls over more expressions of opinion are needed.
This is what is behind the idea of ‘non-crime hate incidents’ – for most people, the mere fact that the police are investigating these incidents and wringing their hands over the fact that “at the moment there is nothing we can do” about legally expressed beliefs or thoughts suggests that this is another loophole that needs closing, not that we are seeing massive authoritarian overreach to shut down debate and individual freedom. The fact that the police are visiting people who have committed no crimes in order to tell them to “check their thinking” is in itself a form of intimidation, and not just of the people involved – as these stories become public, everyone else might think twice about expressing an unpopular opinion, legal or otherwise, if it is going to lead to a visit from the plod.
Like many a British law, the Online Harms Bill is extremely, deliberately vague in its claims about just what will constitute criminal speech and what will be protected under its free speech provisions (a pathetically transparent sop to the free speech groups of the right that is fooling no one). The ‘free speech protections’ in the Bill would appear to simply protect opinions that the government approves of, from groups that the government has decided will be exempt – news sources, for instance, though no one seems to know what will actually qualify a website as a news source. Worse still, it will be the social media platforms who are held responsible for their content and so left to police their users based on a law that no one – not even the people who drafted it – really seems to understand. It is not unreasonable to expect them to err on the side of caution.
The Bill, if it becomes law, will act as a way of silencing whole groups of people from talking about controversial subjects, because no one will actually know what is or isn’t a legally approved opinion or subject matter, and where the line between free speech and hate speech is set, and when it might be moved. This includes the police, of course, who have a history of not understanding – or, if you want to be more cynical, deliberately misunderstanding – new laws and acting in a heavy-handed manner when it comes to enforcing them. When the government passed the heavy-handed and clumsy ‘extreme porn’ laws in 2008, we were assured that it would only be used occasionally – 30 cases a year was the official estimate. In fact, between 2008 and 2011, 2,236 cases reached the courts, and 85% of these were not for possession of images of real sexual violence and murder, the reason that the law – inspired by the murder of Jane Longhurst by Graham Coutts – was rushed through to begin with.
The more people who are arrested for ‘hate speech’ and the more who are visited informally, the more this Bill looks necessary to those who are not paying attention. We’ve already seen news stories of how there has been an explosion of hate crime (the figures always including the ‘non-crime incidents’), without any explanation of how definitions have been expanded and official recording of these incidents changed. It stands to reason that if you include more groups in the ‘protected’ categories, and allow anyone – including people not remotely involved in the incident – to declare that a crime was motivated by hate without any further evidence of that, then figures will certainly increase. As with Video Nasties, the police are widening the idea of what is criminal behaviour, the press is whipping up paranoia about online ‘abuse’ from ‘trolls’ (which frequently now seems to actually be ‘criticism from people who you disagree with’) and the government are rubbing their hands at the idea of finally bringing the internet to heel.
Everyone now recognises the Video Nasty scare as mass hysteria over harmless films, used to bring the wild west of home video under government control, egged on by major distributors that wanted to crush their indie opposition and newspapers keen to sell copies on the back of a moral panic. It was a panic driven by lies – made-up statistics, apocryphal stories and actual fake news – and saw legislation pushed through by people who had no idea what they were talking about. We know all that now, but the legislation not only still exists, but has been tightened over the years. You can bet that the Online Harms Bill will have a few meaningless concessions made to opponents as it works its way through Parliament, only for those parts dropped to be added back in over time when everyone has stopped paying attention and those who might make the most fuss about it have all had their social media accounts and websites closed by nervous hosts who will be taking the most cautious approach possible, given that the law will hold them legally responsible for any breaches.
Supporters of this Bill, keen to see those they disagree with shut down, might do well to remember that this law – vaguely worded as it is – might well be turned on them in the future – tides turn. The price we pay for being able to express our opinions and lobby for social change is that others – the people we disagree with – can do the same thing. We just have to believe that our arguments are the more persuasive ones, rather than hoping that the government will always be one that agrees with us and will not turn its powerful laws of silencing and marginalising against us. Ultimately, this new raft of laws will protect no one and harm many, while probably making martyrs of the very worst people in the world as they have their rights of free expression removed. We would all do well to oppose this.
DAVID FLINT
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