From July 30th to August 7th, the UK experienced social unrest in over 30 locations. In response, authorities launched a campaign of doxxing, prosecution, and imprisonment for those expressing support online. One such case involved Lee Dunn, who posted three images of what were clearly supposed to be illegal Islamic migrants with variants of the caption “coming to a town near you”. Mr Dunn was handed a 12 week custodial sentence, despite simply describing the government’s guidance (since 2021) on refugee resettlement, which can be found here at page 8.

In a criminal law context, there should be a clear distinction between words and actions, however, recent prosecutions reveal that, in Britain, this distinction has collapsed. To all reasonable people it is self-evident that speech on social media, aimed at no specific individual, is less serious than real, measurable criminal acts taken against people or property. Why then, has physical violence, arson and riot been given parity in criminal law with words posted online, and, how could this possibly be happening in England? 

The problem is simple: people in power don’t understand the internet

In agreement with Mr Dunn, 67 per cent of people (polled by YouGov here) believed “Immigration policy in recent years” was “fairly” responsible for the rioting, with 36 per cent blaming it a “great deal”. Since 2010, the British public have voted to reduce mass immigration, legal and otherwise, at four national elections, one European election and one referendum. Still, successive governments have moved in the opposite direction, pushing many to demand mass deportations or control over their country’s fate online. Rather than addressing this concern, the state is now moving to prosecute those speaking out.

The public and the internet:

The problem is simple: people in power don’t understand the internet. The acutely severe lockdowns of 2020-2022 forced millions online, with internet usage more than doubling in 2020. To quote Boris Johnson’s March 2020 address: “you should not be meeting friends, if your friends ask to meet with you? You should say no”. The population never fully recovered from this way of thinking. These refugees from reality settled, yet failed to integrate with the culture of the internet — a culture marked by hyperbole, nastiness, and bravado. Given offline life was unavailable for this period under threat of criminal fines, people began to erroneously equate the two. 

70 per cent of court judges and 69 per cent of tribunal judges are aged over 50, with 35-6 per cent being 60 and over in courts and tribunals respectively. While good judicial sense comes with such seniority, in the matters of the internet, the inverse appears to be true. For example, HMCTs only issued guidance on how to join an online hearing, a relatively new concept to them, in 2020, creating a “Common Video Platform” in May of 2020. Should prosecutions for social media posts continue, they will burden an already overworked court system. I have had the privilege of having been raised one-foot in reality, the other in the fiction of social media. On the other hand, the judiciary seem yet to learn that distinction. 

Judges were not raised in the heated verbal bluster of 2000s Xbox live voice chat. They did not watch the emergent medium of social media grow up, as though it were a younger sibling. Thus, they will never understand that inflammatory language, and aggression, is part of the natural course of things in these spaces. My experiences of online hearings have demonstrated a level of technological know-how in Britain’s legal sector. This knowledge gap is reflected in recent judgments.

The political background – a desire to restrict:

So how did we get here? The passing decade has been filled with calls from politicians to do something about the internet, a place (as they understand it) where the far right organises against them and demons, of indeterminate origin, lurk. Lucy Powell MP, now the Leader of the House of Commons, put forward a motion for consideration of a bill in 2018 banning private Facebook groups, claiming that right wing groups were not being prosecuted as much as she would like. Similarly, in 2021 Lord Gilbert, Conservative chair of the House of Lords Communications and Digital Committee, stated that more online speech ought be criminalised, stating to the committee that: “if the government believes that a type of content is sufficiently harmful it should be criminalised” [Emphasis added].

Legislators, and the government, are choosing to see harm where harm is not there. When this cannot be done, harms may be invented by government. The shared ambition is clear; either you have no internet, or you must use it at the state’s mercy. The sad result of this is the erosion of our right to speak freely – which extends to the digital realm, and the distinct culture of that realm which has developed in my lifetime. 

Powell and Gilbert’s comments reveal two things, common to digital policymaking. First, they are strong comments from people who have never spent a moment engaging culturally with the internet – they are the comments of digital tourists. Second, they fail to acknowledge what most readers will find glaringly obvious — views stated on social media, even racist and unpalatable ones, should never have parity with the very real crimes of being robbed, burgled, raped or murdered etc. Given these two things, we can have no faith in the laws governing online speech. 

On August 5th 2024, Keir Starmer demonstrated that his government takes the same view, stating: “I have been absolutely clear that the criminal law applies online as well as offline” following the Southport riots of this year. Never has there been a clearer invitation to increase prosecutions for speaking online. Starmer, a career prosecutor-turned-prime minister, was handed carte blanche to deem many unexceptional internet users in Britain as criminal.

How are they prosecuted?

This isn’t the first time Starmer has  been eager to pursue prosecution over speech, he has done this routinely since his time as DPP. It was Mr Starmer who, following the cancellation of Dr David Starkey in 2020, allegedly called for both Starkey and the interviewer, Darren Grimes, to be prosecuted under the s.6 (and likely also s.4) of the Public Order Act 1986.

The majority of those who have been prosecuted for social media posts in recent months have been prosecuted under the Public Order Act 1986 (“The POA”), an act designed to prevent physical disorder, which is now being used to prosecute social media posts perceived to incite violence, hatred, or harassment against individuals or groups based on race, religion, or sexual orientation. The Act makes no mention of social media; nor most of the protected characteristics above besides race. Those elements are derived from the Criminal Justice Act 2003, specifically sections 145 and Section 146 which is the primary legislation which outlines the protected characteristics in the context of what has been termed “hate crimes”. 

Wayne O’Rourke

Understandably, this approach of cobbling together crimes out of legislation designed for other purposes entirely is highly unpopular with the public. Given there has never been an electoral mandate for this, should never have come to be. It is this approach which resulted in the sentencing of Mr. Wayne O’Rourke, an X user from Lincoln, who received a 3-year custodial sentence for posts online. 

The nature of his offence was twofold; firstly, he had suggested that the Southport stabbings of July 29th were carried out by a Muslim. They were in fact carried out by an ethnically Rwandan, first-generation Welsh-born citizen. Lincoln Crown court described this in the pravda-esque terms of “misinformation” and went on to suggest a second spoke of Mr O’Roarke’s offence; that he had “instigated” unrest in Southport and elsewhere by tweeting that the people of Southport should “get out on the street” in a post which garnered 1.7 million views at the time of his prosecution. 

What is most interesting here in the sentencing comments is that the fact unrest took place appeared to be irrelevant. It further appears that it was irrelevant as to whether anyone saw Mr O’Roarke’s “inciting” comments besides the court, and the police. What we learn here is that the government, police and judiciary’s approach to digital “crime” is one of fumblingly applying The POA to things they are struggling to understand, regardless of its impact or the lack thereof. O’Roarke did not mastermind the Southport riots, he was invigorated and reacting to them, from the distant safety of his residence in Lincoln. 

Daniel Kingsley

Daniel Kingsley, was sentenced to 21 month custodial sentence under the POA for allegedly racist messages on Facebook on 8 and 10 August. These posts, as the defence stated, were only made visible to a friend of Mr Kingsley using post settings and were not available to “the wider public”.  On sentencing, Judge Rowlands suggested “You only post something on social media if you want it to be seen”. This literalist acceptance to the silicon valley-originating term “social media”, and presumption of Mr Kingsley’s intended audience, are troubling and I strongly question whether the learned judge actually knows that a post can be made visible to select people on Facebook. Despite an acceptance that social media is a “public” space, in cases such as Chambers v DPP [2012], the definition of “public” in the context of the POA has been stretched here to a laughable extent. 

Lucy Connolly

In another example; we now face a situation where you are more likely to serve a custodial sentence for a post online in the UK than you are to be banned from the platform you posted it on. Lucy Connolly, who received a 31-month custodial sentence on October 17th 2024 pleaded guilty to The POA offence of “stirring up racial hatred”. X (formerly Twitter) took no action on the post, or her account, despite having explicit rules on incitement and racial hatred.

The Judge who sentenced Connolly placed her level of culpability in category A and the level of harm category 1 — the highest in both. This was because her tweet had “intended to incite serious violence” and was posted during a “sensitive social climate”. As I see it, speech which does not lead to a measurable harm and is not directed at an individual should be untouchable. If it is going to be sentenced as “incitement”, a direct link must be established with either the criminality or attempted criminality incited. Connolly did not name or “doxx” the location of specific hotels, nor did she participate in seeking them out. Without that link, the timing of a comment alone cannot be used to deem it incitement, as it was here. Such logic could mean that stating “I hope there’s a 9/11” before the second tower was hit might be deemed incitement in England. Essentially, commenting on any ongoing criminality favourably now carries a risk of prosecution. 

We live in perhaps the most censorious, professionally regulated and digitally observed time in our history

The sentencing judge in Connolly’s case also calls attention to her having “sought, and achieved, widespread dissemination” simply by putting her words on social media. Widespread dissemination is not a guarantee, nor always an aim when posting something online. As I see it, Mrs Connolly’s only crime was that her tweet had gone viral — something which allowed activists to report it to police. 

We live in perhaps the most censorious, professionally regulated and digitally observed time in our history. The UK has over 90 regulatory bodies covering most forms of work, all of which restrict the public speech of named professionals. At a criminal level, s.4 of the POA criminalises the act of displaying any “visible representation which is threatening, abusive or insulting”. 

Anyone who has spent a moment on the internet in the past 20 years knows well that this is an unenforceable legislative pipe-dream, applied to the expanse of human behaviour online. Accordingly, ordinary human behaviour continues unfettered, in anonymity online. 

A potential solution to this tyranny over speech can be found in the way boxing is dealt with by the criminal justice system. Boxing, under the laws of England & Wales, should almost certainly not be allowed to go ahead, between those consenting to be in the ring, without regular prosecutions. However, the rules and regulations of boxing place it at a relatively safe distance from the criminal law. If sites like X and Facebook were willing to referee the “boxing ring” of their platforms with consistency, the courts ought be satisfied that prosecutions should not take place over speech seen by those consenting to be in that “ring”. 

All of the cases dealt with in this article involved the accused pleading guilty to offences under the POA; likely after being threatened with being held on remand until trial, or, with even harsher sentences than those they received. This is a form of CPS plea-bargaining which, whilst it may save courts time and costs, can also — as with sub postmasters in the Horizon scandal — create serious miscarriages of justice. The “keyboard warrior” prosecutions attempt to create harm where it is not present. They not only represent an attack on our freedom to speak, but they are an overreach of the state into a land which the authorities do not understand. Those who understand the culture must be prepared to push back at governments, the judiciary and police, who have no place eroding online culture out of ignorance and self-entitlement.