A plan to base prosecution of online trolls on subjective judgements by lawyers could derail a perfectly good law.
The Times has reported on changes to the planned Online Harms Act:
Trolls could face two years in prison for sending messages or posting content that causes psychological harm under legislation targeting online hate.
Ministers will overhaul communication laws by creating new offences in the forthcoming Online Safety Bill, the flagship legislation to combat abuse and hatred on the internet.
The Department for Culture, Media & Sport has accepted recommendations from the Law Commission for crimes to be based on “likely psychological harm”.
The proposed law change will shift the focus on to the “harmful effect” of a message rather than if it contains “indecent” or “grossly offensive” content, which is the present basis for assessing its criminality.
A new offence of “threatening communications” will target messages and social media posts that contain threats of serious harm.
The sticking-point is the issue of “likely psychological harm”. Nothing else in the article is new – and This Writer has already supported much of what is planned.
I can’t support a clause that allows conviction based on nothing but wishful thinking.
How would a lawyer gauge “likely psychological harm”? Would they seek reports from medical experts? Would they examine the effect of the messages on their victim? Or would they just take the word of a social media user who may be a good actor with their own axe to grind?
It’s too subjective; it’s wide open to abuse.
The benchmark for criminal prosecution must always be harm that a person has definitely suffered – that can be proved by showing evidence. It can’t be based on hearsay or the wild claims of someone who makes a profession out of being offended.
So, for instance, the teenage girl in Rachel Riley’s libel case against me had genuine anxiety issues that, it could be argued, had been worsened by the dogpiling she suffered as a result of her Twitter encounters with Riley; she was terrified of leaving her home alone for a period of months afterwards.
If this law had been in force at the time – without the subjective element – I am satisfied that it would have been possible to show the harm that had been done.
The fear with the new measure is that it will allow people with a political axe to grind – most probably right-wingers, as usual – to victimise others by claiming psychological injury from social media posts that simply engage in robust debate.
No doubt the Tory MP's sick of being held to account by people will be delighted to be able to report their own constituents. https://t.co/CXgXczymCZ
— Damien Willey #YourNHSneedsyou (@KernowDamo) November 1, 2021
See what I mean?
And note how The Times misrepresented the story; Twitter ‘pile-ons’ (more properly known as dogpiles) were already going to be criminalised before the subjective element was added in.
We all got the point:
The govt wants to: Close off Freedom of Information. End the right of peaceful protest. Have private companies on NHS boards. Have penalties (2 years) for posting something that is 'likely' to cause 'psychological harm', as justification for censorship & stopping govt criticism,
— Ann Johns, Grumpy Geordie Gran. #TAX THE RICH! (@AnnJohn30914404) November 1, 2021
Even a former Conservative chairman and Brexit minister has come out against this offence to justice: David Davis.
According to Sky News:
Mr Davis criticised the bill as “a good example of the best of intentions leading to the worst of outcomes” and warned that it was “a censor’s charter” as a result.
He warned that as the law is backed up by fines potentially stretching into billions of pounds for companies that fail to tackle this content, they will err on the side of caution.
“You can be sure that in any area of controversy – political issues, culture wars, or even COVID science – there will be plenty of people complaining and demanding a post be taken down.
“And with Silicon Valley mega corporations as arbiters of the truth, anything that appears online and can be characterised by someone as misinformation could be censored.
“The chilling effect on free speech will be terrible,” he added.
Still, being British, we can laugh at it:
I would like to confirm that as part of the online safety bill, tweeting #JohnsonOut will now be a criminal offence!
— Boris Johnson MP (Parody) (@GetBrexit_Done) November 1, 2021
We laugh because it’s funny, and we laugh because it’s probably true. It shows how low the UK government has fallen.
Have YOU donated to my crowdfunding appeal, raising funds to fight false libel claims by TV celebrities who should know better? These court cases cost a lot of money so every penny will help ensure that wealth doesn’t beat justice.
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