The conflict between freedom of speech and protection of individuals from harassment in an on-line environment was the subject of a lively debate organised by the Society of Labour Lawyers. The three panellists were Dr Jacob Rowbottom, Associate Professor of Law at the University of Oxford, Helen Lewis, Deputy Editor of the New Statesman and Caroline Criando-Perez, journalist and feminist campaigner.

Ms Criando-Perez became widely known for her successful drive for a woman to be featured on one of the Bank of England bank notes. This prompted a systematic campaign of on-line abuse resulting in Ms Perez receiving threats of violence, including rape and death threats. Two people have since been convicted, and a third trial was ongoing at the time of the panel discussion. Ms Criando-Perez showed some examples of the messages she had received and talked about the impact the abuse had on her.

Helen Lewis focussed on the importance of free speech in a civilised society and the need to make a clear distinction between harassment, which should be prohibited, and offence, which should be allowed. Ms Lewis stated that she viewed this primarily as an issue of sexism – victims were usually female. Ms Lewis described a ‘culture of trolling’ in English-speaking social media.

Dr. Jacob Rowbottom set out the legal backdrop to the debate. He explained that varied legal controls were already in place, including s4 A of the Public Order Act 1986 and Section 127 of the Communications Act 2003. He also referred to the DPP Guidelines For Prosecutions Involving Social Media Communications, finalised in June 2013, which state that only in the most extreme cases should prosecution be brought.

Dr. Rowbottom went on to identify three trends that made digital communication a problem. Firstly, on-line statements could be retrieved readily. More of what people say now constituted publication and therefore was a target for regulation. Secondly, there was an obligation to comply with a wide range of different laws that have all converged on social media. Thirdly, the laws are very broadly worded and can be used to curtail much speech, including political speech. Dr. Rowbottom also identified what he perceived to be a problem of HR jurisprudence in the arena of social media. He pointed out that the case law that had developed regarding freedom of expression under Article 10 of the European Convention for Human Rights had largely been developed in cases concerning press freedom. He pointed out that rules that had been developed in the journalistic sphere don’t apply so readily to ‘drunk tweets on twitter’.

Once the panellists had made their points there was a general debate about the issues. This included an interesting discussion about the possible effect of the DPP guidelines and whether the right decisions are being made in determining which cases should be prosecuted. The debate concluded with Ms Lewis noting that it was important to have more sophisticated structures in place (via the police) to deal with these issues so that in the future cases of such abuse are dealt with more appropriately and victims are better protected.

The House of Lords Select Committee Report, published on 29thJuly 2014, concluded that the existing criminal law is sufficient to deal with criminal offences via social media. It is unlikely however that this will be the last word on the subject. As the case due to be considered by the US Supreme Court later this year demonstrates, the question of how the competing interests of free speech and prevention of harassment via social media can be reconciled is likely to continue to tax both academics and law makers for the foreseeable future.

Susan Collins, Centre for Law Society and Popular Culture, Westminster Law School