[Update] Social media law in Scotland

In an earlier post on Defero Law here, 'Social Media and the Law in England and Wales, Scotland, Northern Ireland and the Republic of Ireland', Brian Spencer (@brianjohnspencer) wrote:

"The [social media law] situation hasn't been as fluid in Scotland as it has in England and Wales and elsewhere. The position can be summed up pretty quickly. Where on December 19 2012 the DPP for England and Wales published interim social media guidelines, the lead prosecutor north of the border, the Lord Advocate of the Crown Office and Procurator Fiscal Service (COFPS)said that they would not follow the lead of DPP, Keir Starmer QC. 

The Scottish prosecutor’s position was that they would not hand down social media prosecution guidelines; but would rather continue to take a ‘robust approach’ against offensive material posted online. No definition of the term ‘robust approach’ was given."

Alex Massie developed things when he wrote in The Scotsman here, 'When freedom of speech is a sick joke.' He shared a recent anecdote:

"In Staffordshire this week a shop keeper named Neil Philips was arrested and detained by the police for eight hours after a busy-body clipe complained about messages Mr Philips had posted on Facebook two months ago (see here). Among the heinous items reported to the police, a status update complaining “My PC takes so long to shut down I’ve decided to call it Nelson Mandela”. 

On this occasion the prosecuting authorities agreed and Mr Philips will not face charges. Nevertheless his experience is another data point endorsing the proposition that free speech is no longer guaranteed in this country. Sure, you may be permitted to say what you think on social media, but if what you say offends you should be prepared to be investigated by the state."

Alex Massive went into the law:

"Closer to home, the Lord Advocate has instructed procurators fiscal to “take a hard line” against “hate crimes” perpetrated in response to the Clutha tragedy in Glasgow (we covered that here). According to Frank Mulholland “a robust prosecution policy towards such offences” is “important” in “recognition of the fact that people died and the impact such crimes will have on their families and friends”. 

A 16-year-old boy was arrested last week for posting allegedly sectarian and racist comments on Twitter and at least two other people are being investigated for publishing allegedly hateful messages on Facebook. It seems likely that these incidents do indeed involve the publication and distribution of loathsome opinions of a kind that would reasonably shock ordinary, decent people.

Alex Massie passes comment on this development:

"But what of it? Upon what reasonable grounds can revealing that you are a disgusting and small-minded twerp be considered a criminal offence? It is true that the Communications Act (2003) and, in Scotland, the reprehensible Offensive Behaviour at Football and Threatening Communications Act (2012) allow the authorities ample room to prosecute citizens for publishing or otherwise communicating opinions that most people might consider highly objectionable. But it is also true that each of those bills authorise curtailing of speech in ways liberals – if any remain – should find grotesque. 

We may, most of us, agree that incitements to violence should be a criminal offence. There is, however, a gaping distance between provoking criminal behaviour and simply expressing vile opinions that, be they ever so loathsome, inspire no threat to public safety. 

This includes statements that might reasonably be considered racist or sectarian in nature. The aftermath of a horrific incident like the Clutha helicopter crash might seem an indelicate moment at which to insist upon this fact but it is, in fact, the most important time at which to insist upon this. 

The Lord Advocate appears to be arguing, however, that the particular horror of the Clutha tragedy and the deep impression it made on the country as a whole demands a more “robust” response. It is bad enough that so many people are prepared to cause offence in ordinary circumstances but even more reprehensible – and thus a matter for prosecutorial attention – in this instance. These comments are hurtful and so these “criminals” must expect to be confronted by the full force of the law. Which, in these cases, means as many as five years in prison."

And of important note:

"If this is the “new” Scotland you can keep it. I preferred to live in a country in which racist or sectarian statements were met with eye-rolling or rebuttal rather than by criminal proceedings. We might wish that fewer citizens were racists or bigots; we should also wish to live in a land in which expressing “hurtful” or “offensive” opinions that, again, constitute no threat to public safety, are not punishable by law. 

There is no right “not to be offended” and the reason to insist there is no such right is what you may find offensive does not offend me and vice versa. This is not to suggest, as some people aver, that the internet must exist beyond the rule of law. The laws of defamation and contempt of court correctly apply online as well offline. Making a bad joke or displaying distasteful opinions, however, is a different matter. It is beyond depressing that so few of our politicians appear to appreciate this. 

A different Scotland that took a “robust” approach to defending free speech, however offensive, would be a better Scotland than a country which, increasingly, seeks to police and criminalise mere opinions. Alas, that better Scotland seems a more distant place than ever."

As for the civil side of the law. In Scotland the law of defamation has never been the same as in England. Whereas the law in Northern Ireland has always, been in all relevant respects, identical to that in England in Wales. Arrests relating to Clutha Bar tragedy and online comments here and here.