Britain | Hate to say it
Muddled laws give them wide discretion
Illustration: Harry Harysom
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T HE POLICE arrived at Maxie Allen’s door at midday on January 29th. None of the six officers seemed to know much about why they were there, recalls Mr Allen. But they read out a list of charges and searched the house, before arresting him and his partner and taking them to the police station, where they were held for eight hours. The couple’s alleged crime? Disparaging emails and WhatsApp messages about their daughter’s primary school.
Speech is being restricted, particularly online, in alarming ways and at an increasingly alarming rate. The number of arrests—more than a thousand a month for online posts—shows this is no longer about a few rogue cases. The root cause can be found in the country’s speech laws, which are a mess and ill-suited to the digital age: Brits are prosecuted for the sorts of conversations they would have had in the pub. And things are set to get worse.
Mr Vance, who reiterated his criticism at an event on May 7th, has focused on Britain’s “backslide away from conscience rights”, and sees religious lives stifled by woke conformity. But the difference in how America and Europe deal with difficult speech has less to do with recent wokery than with the evolution of laws and attitudes over centuries.
America’s First Amendment provides by far the strongest free-speech protections in the world; its founding fathers wrote into the constitution that “Congress shall make no law” limiting freedom of expression. This protection has been tested and expanded, especially in the 20th century. Europeans, meanwhile, codified such a right only in the mid-20th century—and even then it had clear limits. Lawmakers have long sought to balance the right to free expression and the harm it may cause.
Mr Musk is closer to the mark in focusing on how Britain handles online speech. He seems to have been radicalised by the government’s response to riots last summer, in which thugs reacted to a heinous stabbing spree by targeting mosques and asylum hotels. But his claim that several thousand Britons were locked up for posts where there was “no explicit link to actual violence” was overblown; around 450 people were sentenced, the vast majority for violent disorder.
A few dozen were prosecuted for online posts. Among them were people who said things like “blow the mosque up” and “set fire to all the fucking hotels full of the bastards”. That probably would have been legal in America, says Gavin Phillipson of Bristol University, since it falls short of presenting a clear and imminent danger. Under laws in Britain and much of Europe, it is likely to be seen as inciting violence.
Others, however, were prosecuted for milder statements. Jamie Michael posted a 12-minute video on Facebook after the stabbings, in which he ranted about illegal immigration and warned that the country was “under attack”. He was arrested and held for 17 days on charges of “stirring up of racial hatred”, before being acquitted.
Britain, we have a problem
Consider three more recent examples. A man posted a picture of himself on the way to a Halloween party dressed as the Islamist who carried out a terrorist attack in Manchester in 2017. Another man criticised pro-Palestine protesters, tweeting: “One step away from storming Heathrow looking for Jewish arrivals.” Six retired police officers sent racist messages in a WhatsApp group chat called “Old Boys Beer Meet-Wales”.
The first man faced up to two years in prison before his case was overturned in April. Police ransacked the house and inspected the bookshelves of the second—bizarrely on suspicion of antisemitism—and questioned him at a police station before releasing him. The former police officers all got suspended sentences and mandated community work.
Such bizarre—and chilling—cases arise because Britain has no idea how to police online speech. Its problems largely stem from two outdated laws: the 1988 Malicious Communications Act and the 2003 Communications Act. The former focused on indecent, offensive, threatening or false information. The latter made it a crime to be “grossly offensive” on any “public electronic communications network”.
Under these laws, British police arrest more than 30 people a day for online posts, double the rate in 2017. Some are serious offenders, such as stalkers. Many have simply said something that someone else considers offensive.
The public might well question why so much time is spent on this, while burglaries routinely go unsolved. Some commentators suggest that a strain of wokeness exists in the police, or that chiefs face pressure to enforce strictures. Neither explanation is convincing if you have met many police officers or home secretaries. A more likely one is that the police have a naturally authoritarian streak when it comes to speech. And with charge rates for crimes overall near an all-time low, they find it hard to resist cases presented with a bow.
Either way, the arbitrariness continues in court. These cases have to be heard in magistrates’ courts, meaning they are argued in front of a lay bench with little or no understanding of the case law. Defendants often don’t know their rights, either. The Free Speech Union, a not-for-profit, has started to challenge, and successfully overturn, some convictions (including that of the man with the crass costume). Yet Britain is clearly getting the balance wrong.
It is hardly alone. Frustrated by their weak grip over American platforms, European politicians have struggled to come up with a coherent approach. The result is broad and vague laws that provide excessive discretion to public authorities, says David Kaye of the University of California, Irvine. Both Britain and the EU have introduced legislation that has increased the pressure on platforms to remove “illegal” content with the threat of fines. That is likely to lead to a chilling effect. A bust-up is brewing between regulators and Mr Musk’s platform, X.
But Britain has the deepest muddle. One particular concern is increasing intrusion into private messages. That stems from the 2003 act; a clause written to prevent pests harassing telephone operators is being used to sift WhatsApp chats. “In English law there is no concept of a private conversation online,” says Adam King, a barrister. In addition a 2022 law widened the scope of public-order offences. That has allowed the police to take a draconian approach to pro-Gaza protests; recently they raided the home of a journalist.
Messrs Vance and Musk see a concerted leftist campaign to restrict certain kinds of freedom. In fact, Britain’s problem is more one of neglect: MP s fret about online harm while seeing free speech as a secondary issue, worth sacrificing in some circumstances. Attempts to fix bad laws have fizzled out. Of all the recent cases, it is Mr Allen’s that best captures the careless erosion of a crucial liberty. At one point during his questioning Mr Allen’s partner asked for an example of a WhatsApp message that constituted “malicious communication”. The detective had to stop and Google the crime. ■
This article appeared in the Britain section of the print edition under the headline “Amend thyself ”
From the May 17th 2025 edition
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