Peter Menzies: In the U.K., free speech remains under siege

A bad tweet isn't a matter for the police. And yet ...

By: Peter Menzies 

England is not a safe space for social media users. 

That’s because, given what just happened to Daily Telegraph columnist Allison Pearson, it’s possible that posting something that offends a philosophical, theological, political or ideological foe — and many of us have a few of those — could result in the police being told that the post is capable of inciting hatred. That’s a criminal offence. If convicted, jail is likely and not for anything that was done by the poster or anyone else. The words themselves were the crime. 

Sounds crazy, doesn’t it? But as in Canada, the term “hate” has evolved considerably in the U.K. Once reserved for irrational calls to action capable of objectively causing physical or economic harm, it now includes the far-more subjective realm of feelings stimulated by the offensive and disagreeable. 

Police, of course, are obliged to investigate when they receive a complaint. If they didn’t, they’d almost certainly be accused of enabling hate, and of being racists themselves. 

A number of English people are now in prison for comments they made on social media following the Southport murders of three little girls at a Taylor Swift dance class in August. Evidence that those comments had prompted hatred leading to actual harm — and rioting most certainly was occurring — appeared to be unnecessary. What mattered was that the Crown and the Court believed the posts were offensive enough to carry that potential. 

Which brings us to Pearson. Early on Remembrance Sunday (Nov. 10), the columnist had police knock on her door and wonder if she might be willing to assist them in their inquiries. 

The matter at hand was a year-old and hastily-written X post in which Pearson accused the coppers of two-tiered policing for appearing in a photo with some men from Pakistan who Pearson mistook for Hamas supporters and characterized as “Jew-haters.” Pearson had mistakenly assumed the scene was in support of the Palestinian cause and once she was alerted to her error, she deleted the post. 

One would think that would be the end of it. If it went anywhere, perhaps lawyers would exchange letters and an apology would be issued. Pearson’s worst-case exposure might involve a small cheque. Civil society and liberal democracy would prevail. 

Instead, what happened next made it look like the beginning of the end for those long-standing British traditions. 

Someone unknown to Pearson, but definitely not a fan, brought her post to the police’s attention. Officers appear to have initially categorized the columnist’s behaviour as what they call a “non-criminal hate” incident. But the matter then escalated and Pearson was “invited” to be interviewed; even Labour Prime Minister Sir Keir Starmer suggested the police might better apply their resources elsewhere. 

After days of increasingly intense criticism, the police did indeed back down, saying they’d closed the investigation and that no further action would be taken. But it was too late, and the nation’s reliably partisan press had weighed in. Jane Martinson of The Guardian, for example, took exception to the likes of Elon Musk defending Pearson’s freedom of speech.

The Telegraph and Pearson view the world through a decidedly Conservative lens. Martinson and The Guardian, for which she writes, see it very much from the left. Little wonder, then, that while Martinson wrote that she was “generally opposed” to strong-armed police actions against journalists, Pearson ultimately deserved what was happening to her, said it was part of “civilized culture,” not cancel culture, and fussed that free speech was being “weaponized.” 

It is easy enough to conclude from this that the people who brought us the Magna Carta 1,000 years ago have lost their minds, abandoned the concept of free speech and embraced cancel culture — yes, cancel culture — with a vigour once reserved for East Germany’s notorious Stasi. 

What is more important, however, is for Canadians to understand just how close their country is to following suit. 

The Online Harms Act currently before Parliament is not as severe as Britain’s laws governing online speech. Yes, it does equate hate mongers to Paul Bernardo-style serial killers by calling for life sentences for inciting genocide. But, unlike the U.K., Canada, thank God, has an actual Charter of Rights and Freedoms that protects freedom of expression provided physical harm isn’t expressly called for against an identifiable group. If past precedents are anything to go by, the bar for a criminal conviction is far higher than in England, where middle-aged women with no priors and an ailing spouse wind up in prison for 18 months for admittedly nasty but deeply regretted and deleted Facebook posts within a small community group. 

So, even once the Online Harms Act is passed and a Digital Safety Commission is created to patrol speech, there’s little chance you will have to worry about finding a pair of grim-faced constables on your doorstep on a Sunday morning as Pearson did. 

What we will have to worry about is hearing from the Canadian Human Rights Commission in Ottawa. It, you see, will be newly empowered to take complaints from members of the public regarding social media posts that have made them feel discriminated against. So, if you were to post, for instance, something about trans women playing women’s sports, any number of trans women and their allies could file complaints against you with the Commission, where the rules of evidence are quite different than in a court of law. There, the process can be the punishment and if past practice is anything to go by, the Commission will work to settle the matter by shaking you down to write a cheque — or cheques — likely in the range of $5,000 to $10,000. In doing so, you will avoid legal bills many times greater than those sums and the career-destroying public shaming involved should the Commission rule against you. 

The end result will be the same. Activists will constantly scour social media looking to take offence and file complaints demanding takedowns and reparations (fines up to $20,000 are possible). People won’t dare take on topics like gender identity, parental rights and diversity, equity and inclusion initiatives. Speech will absolutely be chilled.

The essence of a free press is that everyone is entitled to their opinion without fear of sanction by the state or its agents. In this country, most news media have fought successfully for government subsidies based on their self-defined role as “defenders of democracy,” which at its core relies on freedom of expression. Without that, nothing else matters.

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