The tension between freedom of speech and safety online is nothing new, but the age-old debate arises once again with Parliament’s passing of the Online Safety Act 2023 (OSA).
On 31 January 2024, a host of new communications offences, set out in Chapter 10 of OSA, came into force. Amongst the targets of the new legislation are ‘false’ or ‘threatening’ communications (ss.179-181).
Inevitably, legislation that seeks to restrict what we can say, or how we might say it, will ring alarm bells.
How might courts balance these new offences against the right to free expression?
Freedom of Expression
Under both Article 10 ECHR and the common law we enjoy the right to hold opinions and to receive and impart information and ideas without interference by the state.
The courts have been robust in their protection of this right, reminding us that “freedom only to speak inoffensively is not worth having” (Redmond-Bate v DPP [1999] [20]).
However, the right is not absolute. It may be restricted by law, where necessary and proportionate. It is also subject to Article 17 ECHR, which holds that no right extends to the destruction of others’ rights and freedoms.
The Strasbourg jurisprudence, endorsed by our domestic courts, makes clear that some forms of speech are more worthy of protection than others. At the apex is political speech, including debate on matters of public interest (Casserly [2024] [48]).
How might criminal offences interfere with Article 10?
Article 10 does not provide an automatic defence to a criminal offence. Nor does the question of proportionality arise in every case.
In Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] the UK Supreme Court identified three broad categories of interference [54-56]:
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- In some cases, there is simply no interference with Article 10 at all, and so no need for a proportionality assessment. This applies to speech that is of such little value, or that poses such a threat to the rights of others (such as incitement to violence), that it simply does not enjoy the protection of Article 10 ECHR.
- Other restrictions may interfere with a person’s freedom of expression, but the proof of the elements of the offence will be sufficient to render any conviction proportionate (such as those accused of aggravated trespass).
- Lastly, there are those restrictions that do or may interfere with a person’s freedom of expression, and proof of the offence does not, by itself, make conviction proportionate (such as protesters accused of obstructing a highway).
Article 10 and Communications Offences
How might this all apply to communications offences, such as those under Chapter 10 of OSA?
The right kicks in before one gets to court. The CPS makes clear in its Communications Offences Guidance that “relevant ECHR considerations must form part of both stages of the Code Test review.”
The factors that the CPS will consider include the intended recipient, the context, and whether any terms used could be subject to interpretation. The guidance expressly discourages prosecutions based on speech that is merely offensive, rude, unpopular, or distasteful.
If an offence is charged under OSA, clues as to how courts will deal with these new offences may be found in previous authorities dealing with similar communications offences.
Casserly [2024] explored the interplay of political speech and the sending of a “grossly offensive” message under s.1(1)(b) of the Malicious Communications Act 1988 (an offence that has not been replaced by OSA).
The Appellant sent an email to a Town Councillor (copying in other councillors) in which he made insulting comments about her competence and disabilities, which included the comment: “how does a councillor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?”
He raised as a defence his rights under Article 10. The Prosecution argued that the comments fell outside of Article 10 entirely because they were “purely offensive and insulting” (Category 1 of Abortion Services). Alternatively, the Crown said that proof of the elements of the offence was sufficient to render a conviction proportionate (Category 2 of Abortion Services).
In rejecting the Crown’s characterisation of the speech as meaningless abuse, the court emphasised the “political context” of the email, including the fact that it was sent to the recipients in their capacity as Town Councillors. It was not a case in which the comments went “well beyond robust scrutiny” [52].
Given that Article 10 was engaged and ought to have been an issue in the trial, the court held that the directions given to the jury were inadequate and the conviction was unsafe. In particular, the jury ought to have been directed on the importance of free speech as a fundamental value in society; on the need for special tolerance when it comes to speech on political issues; and on the need for public figures to have particular tolerance.
The characterisation of such nakedly unpleasant comments as “political”, or as a form of “holding politicians to account”, is startling. It demonstrates just how far the courts will go to protect speech that is even tangentially political. The principle that politicians must “possess a thicker skin” [19], whilst understandable, sits uneasily with the well-documented increase in online abuse of MPs.
If Article 10 is engaged, how does it practically apply as a defence?
It seems likely that Article 10 issues will arise in relation to two of the OSA offences.
s.179 OSA introduces the offence of sending a false communication:
179 False communications offence
(1) A person commits an offence if—
(a) the person sends a message (see section 182),
(b) the message conveys information that the person knows to be false,
(c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and
(d) the person has no reasonable excuse for sending the message
The obvious place into which Article 10 may be inserted, if it was properly engaged, is as a defence of “reasonable excuse”.
However, there is no such equivalent defence in the new offence under s.181 of sending a threatening communication:
181 Threatening communications offence
(1) A person commits an offence if—
(a) the person sends a message (see section 182),
(b) the message conveys a threat of death or serious harm, and
(c) at the time of sending it, the person—
(i) intended an individual encountering the message to fear that the threat would be carried out (whether or not by the person sending the message), or
(ii) was reckless as to whether an individual encountering the message would fear that the threat would be carried out (whether or not by the person sending the message).
(2) “Serious harm” means—
(a) serious injury amounting to grievous bodily harm within the meaning of the Offences against the Person Act 1861,
(b) rape,
(c) assault by penetration within the meaning of section 2 of the Sexual Offences Act 2003, or
(d) serious financial loss.
Article 10 is unlikely to arise in the vast majority of s.181 cases, given that threats of serious violence simply would not engage Article 10.
However, the offence includes ‘serious financial loss’ within the meaning of ‘serious harm’. Does that amount to activity aimed at the destruction of the freedoms of others, such that it automatically falls outside of Article 10?
It seems plausible that there will be cases in which such a threat engages Article 10, particularly when made in a political context. For example, if a group of protesters posted a threat to occupy the stock exchange, in an effort to pressure firms into divesting from fossil fuels, one presumes that they would argue that any prosecution under s.181 would be a disproportionate interference with their Article 10 rights.
But with no ‘reasonable excuse’ defence, how would Article 10 apply?
A court may first ask itself whether it can interpret s.181 in a way that is compatible with Article 10, as per s.2 of the Human Rights Act. That was the approach adopted by Dyson LJ in Connolly v DPP [2007], in which “heightened meaning” was given to the phrases ‘grossly offensive’ and ‘indecent’ so as to raise the threshold for conviction.
Perhaps the same approach could be adopted by giving a heightened meaning to the phrase ‘serious financial loss’ or even the word ‘threat’.
What if the court considers itself simply unable to give effect to Article 10 within the elements or words of the offence? Those who defend may instinctively reach for an abuse of process argument. In Abortion Services the Supreme Court left open the question as to whether such an application could be an appropriate remedy.
Rather than gamble on the wisdom of the court, practitioners may wish to engage with any Article 10 issue as early as possible so that an informed decision can be made as to whether it is necessary and proportionate to charge an offence in the first place.
Tom Parker defends and prosecutes across the spectrum of criminal law. He is regularly instructed on cases beyond his year of call, including in matters of high-value fraud, organised crime, and serious violence. He has experience in both protest law and cyber offending. He is listed as a “Rising Star” (Legal 500, 2024).
This article is adapted from a 36 Crime seminar on the Online Safety Act 2023 delivered by Tom Parker, Arthur Kendrick, and Catherine Rose on 21st February 2024. If you would like to attend future seminars delivered by the 36 Crime team, please email michelle@36crime.co.uk
Further information
For more information from the crime team, contact clerks@36crime.co.uk
Involving Tom Parker