Crossing the line

JK Rowling, a well-known Unionist, was subjected
to large-scale, offensive, even obscene, online abuse following the general election.

Katie Hopkins in her Sun column referred to migrants as 'cockroaches' and 'feral humans'. These events sparked a debate on the permissible boundaries
of freedom of expression.

Qualified right

English law explicitly includes
a right to freedom of expression (article 10 of the European Convention on Human Rights (ECHR)). This qualified right is subject to limitations relating to public safety, disorder, and rights of others.

A democratic society must accept expression of opinions which are unpopular, even shocking: Handyside v United Kingdom (1976) 1 EHRR 737.
It must accept that public figures and matters of public policy are particularly open to debate, which may be robust, even offensive: Lingens v Austria (1986) 8 EHRR 407.

Historically, British authorities imposed few restrictions on
free speech, except in wartime. Today, threatening or abusive words or behaviour may constitute summary offences under sections 4A and 5 of
the Public Order Act 1986.

There is a summary
offence under section 127
of the Communications Act
2003 of sending grossly
offensive, indecent, obscene, or menacing content by a public telecommunication system. Chambers v DPP [2013] 1 WLR 1833 considered this. The defendant had tweeted a joke in poor taste about blowing up an airport if his travel plans were disrupted. He was convicted by the magistrates' and crown court which found his tweet 'menacing'.

Lord Judge LCJ observed:
'The 2003 Act did not create some newly minted interference with the first of President Roosevelt's essential freedoms - freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful
to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.'

The Divisional Court held, largely because both airport authorities and police recognised this was a joke, it could not be menacing.

Reasonable balance

This and other cases resulted
in CPS guidelines on offences concerning social media communications. Direct
threats of violence, harassment,
or stalking are likely to be prosecuted. Material which
is merely offensive, indecent, obscene, or false will be subject
to a high threshold before prosecution is considered to be
in the public interest. This reflects the observations of Lord Judge, and seems to strike a reasonable balance, respecting article 10 rights.

The test is said to be that
set out by Lord Bingham in
DPP v Collins [2006] UKHL 40: 'There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but
not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.'

It is likely the worst of the Twitter abuse aimed at JK Rowling crossed this threshold.
In England, if repeated, it could constitute harassment as well as
a Communications Act offence.
It is unlikely to amount to defamation, since it seems to be merely vulgar abuse: Thorley v Kerry (1812) 4 Taunt 355.

Material in a newspaper is not subject to the above criminal offences. The IPSO Editors' Code of Practice (to which the Sun subscribes) states: 'The press must avoid prejudicial or pejorative reference to an individual's race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability.' It is arguable that Katie Hopkins' comments in the Sun about migrants fall foul of this, although it could be argued that abusing migrants as such is not on the basis of race or colour.

Ultimately, the need for there to be freedom of expression, including unpopular and offensive views, means we must be relatively thick-skinned. Democratic societies are plural; there must be give and take.
The most extreme forms of online abuse, like face-to-face abuse, can be dealt with through the criminal law.

Perhaps the most interesting question is whether the press regulator IPSO will treat Katie Hopkins' remarks as egregious but legitimate expression of opinion, or a breach of the
Code of Practice. SJ

John Hodgson is a reader in legal education at Nottingham Law School