In defence of “stirring up”

The Online Safety Act continues an ignominious habit of modern British politics: the prosecution of speech and the prosecution of so-called incitement. This is an inversion of our traditional understanding of free speech and the criminalisation of harm, that is: we are free to do as we please until we commit harm to somebody else. Hopefully it remains little more than a habit, and does not become a tradition of its own.

This Act, introduced with cross-party support in the previous Parliament, came into force at the end of 2024. Its implementation provoked an immediate reaction: OpenAI, one of the world’s most innovative technology companies, announced that it would not operate its new text-to-video AI service in the UK, because of the heavy-handed obligations of this law regulating the sort of content its users can create. As bad as it is, it could have been worse; charities like the NSPCC pushed for this law to be even stricter. Indeed, had the Labour Party not been in opposition when the law was passed, it likely would have been. 

While headlines focussed on the law’s effect on the tech sector and the digital economy, the small print reveals how insidious this law will be for political speech in the UK. It includes so-called “hate offences” which include the “stirring up of racial hatred” and the offence of “stirring up of hatred on the basis of religion or sexual orientation.” 

While this is not the first law to criminalise “stirring up” — the Public Order Act and the Race Relations Act set this concept in motion some years ago — its inclusion in the Online Safety Act expands the way the British state, via the regulator Ofcom, hopes to prosecute speech online. 

The Online Safety Act imposes criminal penalties on individuals found guilty of “stirring up” offences. It also holds executives of tech platforms responsible for upholding the law online, mandating managers of these platforms to remove illegal content and even ensure illegal content is never published on their platforms in the first place. If they fail to do so, Ofcom may fine their companies 10 percent of their global turnover. That would amount to fining Meta, parent company of Facebook, Instagram and WhatsApp, around £10 billion. Quite the payday for a quango.

This expansion of government power is so vast one wonders whether the British state has the capacity and capability to enforce such regulations. It is almost decadent in its assumption that Ofcom — a regulator founded to manage a competitive market among telecommunications companies — can regulate the totality of the internet to supposedly keep British people “safe” online. It should be no business of Ofcom’s whether someone overseas posts something offensive on an American-owned website. But we should, for now, analyse the Government and Ofcom’s intentions as if they can do so. 

To criminalise “stirring up” is not to criminalise actual harm, but the potential for harm

Such intentions have terrible implications for free speech. To criminalise “stirring up” is not to criminalise actual harm, but the potential for harm. It is a theoretical matter, not one grounded in reality. Criminalising “hatred” is similarly theoretical. Hatred is an emotion that every person expresses at different points in their lives. What should be a matter for criminal law is the prevention of harm, primarily physical violence. For the criminal law to intervene to stop one person from theoretically encouraging another person to feel a particular emotion is absurd and authoritarian. In the realms of online communication where people with tiny followings on social media platforms can blurt their thoughts to the digital world without knowing who sees them when and where, it becomes doubly absurd for this to be a criminal or regulatory matter.

Ofcom themselves say that the threshold is higher than prosecuting the words themselves. In an attempt to allay fears, guidance around the implementation of the Online Safety Act states that it is not simply the words themselves that meet the threshold for prosecution but their capacity to incite hatred in others. Without information about specific thresholds or demonstrable consequences of the speech in question this offers no comfort. It is a recipe for the prosecution of political speech on political grounds, and will give the state even more powers to conduct such prosecutions, something in which it has shown considerable zeal and enthusiasm in recent years. 

Seeing as we have already seen people jailed for posting jokes on Facebook and even within private WhatsApp chats, why has Parliament granted the state even more prosecutorial powers?

Among stiff competition, the Online Safety Act was probably the worst Act passed in the 2019-24 Parliament

On top of this are the sections in the Act devoted to misinformation and disinformation. While the government claims it wishes to use this Act to scrub the internet of harmful propaganda produced by Britain’s enemies, it is hard to believe this will be anything other than Ofcom taking it upon itself to target political speech it does not like. The experience of the pandemic should be instructive. The authorities changed its view on what is correct and what is disinformation with alarming frequency, changing its views on masks, herd immunity, ventilation and the like, while proscribing whatever view was contrary to the official narrative. We have seen similar weaponisation of information around the rape gang scandal, which has returned to political prominence recently, with definitional warfare online over who is “Asian”, the dominance of Pakistani men in the statistics, how to define “grooming”, and endless misunderstandings of per-capita statistics, notably by the Home Office itself.

Among stiff competition, the Online Safety Act was probably the worst Act passed in the 2019-24 Parliament. It threatens economic, political and intellectual liberty all at once, and it will likely do little to protect children online, as its supporters hoped. It must be repealed, and replaced by laws which return to our traditional understanding of harm based on evidence and intent, rather than allowing the state the dystopian authority to prosecute its citizens on the basis of the possible consequences of the words they expressed through a microphone or a keyboard.