Limitation of the Freedom of Speech on Social Media Platforms
Introduction
Twitter and Facebook are some of the leading social media sites in the world. There are hundreds of millions of messages and pictures that are shared on social media sites each day. Every user has freedom of speech. One can post the contents of his or her thoughts freely. However, the fact that there are numerous other users creates a reflection that social media is a public space. The need for regulation of the contexts posed stems from the context that social media is a public space. The limitations of freedom of speech apply in the contexts of the obligation to maintain public morality, order, and the law. The affront to privacy, which is a fundamental right, raises another ground which allows for the limitation of the freedom of speech on social media networks. Nonetheless, it is prudent to consider each aspect of its circumstances. The right to the freedom of speech on social media platforms ought to be objectively limited to balance individual right and social welfare since social media is a public space.
The right to free speech
Free speech is a fundamental human right. Censorship is an approach that limits the exercise of free speech for any human. The right to free speech is provided by the European Convention on Human Rights (ECHR).
‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’[1]
The legal provision above indicates that every individual has the right to free speech. The extend of the freedom of speech, however, is debatable. There are legal limitations to the freedom of speech under ECHR. In other words, free speech is not absolute. The limitations of the freedom of speech under the ECHR includes the
The liability of Internet Service Providers
The responsibility of limiting the instances of tortious speech extends to Internet Service Providers (ISP). The role of the ISP is discussed in the case of Godfrey v Demon Internet Service.[2] In this case, the court ruled that the ISP can be held liable if there is defamatory content on the social media sites which it hosts. The argument by the court underlines the need to ensure that the ISP monitor and limit instances of the abuse of the freedom of speech. The context above highlights that freedom of speech is not absolute. It is limited to the extent that it interferes with other freedoms, the privacy of other persons, and national security.
Nonetheless, it is evident that not all instances of the abuse of the freedom of speech lead to liability on the ISP. The case of Tamiz v Google Inc [2012][3] highlights the differences in the editorial and publishing roles. In the case above, the court ruled that the defendant was not liable for the libel published as it was an internet platform and not the publisher of the information. The court reflected on individual responsibility as a key element that underlines liability in slanderous information on social media.
The liability of the ISPs, however, can be limited depending on the circumstances of the case. In the case of Bunt v Tilley [2006],[4] it was held that the ISP was not liable when a user breached the freedom of speech provisions. The grounds which led to the exoneration of the ISP in the case above were based on the conditions that the ISP did not undertake an editorial role over the content. The following assessment highlights contexts of limitation of freedom of speech through social media platforms.
The use of social media for incitement
The language and the content that amounts to incitement varies depending on circumstances. However, incitement ordinarily urges people to engage in unruly and unlawful behavior. The use of social media for incitement, though based on free speech, can potentially create anarchy and a threat to national security. Incitements are an affront to the order, governance, and lawfulness of a society.
The use of social media to enhance incitement is a common element. The use of Facebook and other social media sites as avenues for incitement was highlighted in the case of R v Blackshaw [2011].[5] The arguments for the prosecution in the case above are that social media was used as a tool for enhancing the spread of incitements. The context was whether it was proper to hold the social media firms responsible for the incitement. The court found that social media abuse, in the abuse of free speech, cannot be a liability on social media sites.
Provisions on the freedom of speech on social media
Social media sites uphold freedom of expression. The freedom discussed is based on the need to respect personal opinions and thoughts of an individual. It is impossible, for instance, of an individual to delete the post made by another person on Facebook and Twitter. Allowing individuals to delete posts made by others would be an infringement of the freedom of speech.
The subsequent consideration, however, is when one discovers that there is a harmful post or a defamatory post made by another person. The context is more relevant when the post puts one to disrepute or exposes their private life. In such contexts, the approach would amount to the rightful limitation of the freedom of speech to uphold public morality and decency. A rational approach would provide the reasoning above as a ground for allowing one to interfere with the freedom of speech of another individual.
Nonetheless, the context is prone to abuse. There are no specified and verified means of proving that one has been targeted by a post made on social media by another person. Thus, the approach would be abused. It would be easy for individuals to raise the claim and delete posts made by other individuals. Thus, social media sites have adopted a differentiated view on how to handle the instances of abuse of freedom of speech.
The limitation of freedom of speech by social media firms
Numerous social media platforms often limit the content that one can post on their sites. Such a limitation, at least in a legal sense, amounts to a limitation of the freedom of speech. It means that one does not have the opportunity to freely express and publish his thoughts. The contexts of the limitation, however, are weighed on the social welfare and public morality grounds, as discussed below.
Social media sites such as Facebook and Twitter censor content that is posted on their sites too. Thus, the engagement in the limitation of the freedom of speech in social media platforms occurs in numerous instances. Facebook has a platform where individuals can report abusive or other forms of offending or immoral posts. The company promptly investigates and pulls down the offensive posts after it has had the opportunity to substantiate whether the post or the comments made are an affront to the freedom of expression. Some of the grounds that the company applies in determining whether it will pull down posts by individuals include obscenity, decency, or instances of defamation.
The freedom of expression in political revolutions
It is undeniable that social media played an important role in the recent revolutions that have occurred in the Middle East. However, the context of the freedom of expression comes into question when the matter at hand is calling for social unrest or disregard for the set law and order. Nonetheless, the question of whether the said law or order is democratic is also inescapable. Thus, the censorship of the freedom of expression ought to put all these elements into consideration.
The Egyptian revolution, which shaped the democratic space in the country, was started by a tweet. In the year 2011,WaelGhonimis called the people to join him in protest against the government. The protests turned out to be the tool that brought down the undemocratic political order in the country.[6]Wael was hailed as an international hero for his actions.
The question of the freedom of expression, nonetheless, is a dicey issue. The argument in favor of allowing the f reedomis contrasted with the engagement of creating social discord and abuse of the rule of the rule of law. The authorities in Egypt at the time, as in other countries that experienced popular revolutions influenced by social media, termed the posts as illegal. Thus, they classified the posts as an exception to allowing freedom of expression.
Nonetheless, the international community hailed the acts as heroic and claimed that they are protected under the Universal Declaration of Human Rights.[7] The context, however, remains dicey. Freedom of expression on social media is upheld when it works for the restoration of democratic space and ideals. In other words, such a post would have been classified as illegal under the international standards, if the Egyptian government adhered to democratic ideals. The argument is that freedom of expression extends to approaches that aim at restoring democracy and the rule of law. In other words, the freedom of expression is limited to the context and the principles of governance applied in each case. Social media networks (SNS) are used as tools for liberation, where freedom of expression allows can lawfully call the public to disobey the orders or protest against the government.
Grounds for conviction in cases of freedom of expression on social media
The courts have to grapple with the balance of the freedom of expression and reasonable limitations of such freedoms in the United Kingdom. The context of prosecution and conviction of the abuse of the freedom of expression is based on various elements. convictions often emerge when the expression in question relates to criminalized contents or posts. In the case of R v Blackshaw [2011], for instance, the defendant held a page which was titled “The Warrington Riots.” The fact that the riots occasioned the destruction of public property and public peace were some of the grounds that led to the conviction of the defendant.
The contravention of the provisions of the Human Rights Act is another ground for invalidation of the freedom of expression on social media. The Human Rights Act provides grounds for limitation of the fundamental freedom of expression in the United Kingdom. Such limitations occur in cases where the freedom of expression grossly infringes on the rights of other persons.[8] Thus, the Act balances between the individual rights and the collective and the individual rights of others. It is also applied in limiting social media posts, as discussed in the context below.
The practice harassment is a ground for limitation of the freedom of expression on social media in the United Kingdom. Practices such as trolling are consistent engagements that amount to harassment.Some of the provisions which criminalize the practice of trolling include the knowingly harassing another individual.[9] The process of determining whether the posts, especially on social media platforms, amounts to trolling is objectively assessed. The test applied is the “reasonable man’s test” since it is impossible to provide concrete details on all elements that amount to harassment.[10]
The legislation of the Protection against Harassment Act was enacted prior to the onset of social media usage. Nonetheless, there is a progressive and a subjective interpretation of the abuse of freedom of expression on social media. The grounds laid down by the “reasonable test” within the Act enables progressive assessment of instances of trolling.
The use of social media, though provided under free speech rights, is limited when one posts a vile or hateful message. Liam, for instance, was sentenced to a jailterm of 56 days for posting information that was racist against a footballer named FabriceMuamba.[11] The message posted on Facebook was deemed to be a threat to racial integration and cohesion in the United Kingdom.
The discussion above highlights a classic case of the abuse of the freedom of expression. Liam used social media to propagate social hate. Racism is a vice that harms social integration and abuses the dignity of others. It also brought sports to disrepute as a tool for enhancing racial equality. Thus, the exercise of the freedom of speech, though provided as an individual right, has led to great social harm. The purpose of the law is to enhance balance. Where social harm is greater than the individual freedom as described in the context above, the law will disregard individual freedom in favor of the public good. In other words, it is only reasonable to limit the right to freedom of speech in the given circumstances.
The focus on the objective of the content
The standard procedure in determining whether the information posted on social media is an abuse of the freedom of expression is based on assessing the objective behind the post. The approach could be difficult to determine, but the application of the “reasonable man’s test” and objectivity can go a long way in helping to classify whether the information or the post is an exception to the freedom of expression. The test is often applied by the legislators and the courts in the process of determining whether there is liability after one posts information or a picture on social media platforms.
The allusion to the objective of the content is dependent on circumstances. In the case of the call to engage in protests, for instance, the value of the discussion is based on the context and circumstances. When on calls for protest and removal of office of a government, the circumstances are whether the government in question is democratic. One’s social media speech against undemocratic governance, therefore, is not censored.
The Communications Act in England set the grounds that underline the abuse of free speech by individuals on social media. The Act provides that a message or a post is illegal if it is “grossly offensive or of an indecent, obscene or menacing character.”[12] The communication could be made via an electronic device as stipulated under the Act. The Act sets a variety of metrics that can be applied in testing whether the activity attains the set threshold as a crime as reflected under the Act.
Grossly offensive
The courts need to establish whether the post made attains the initial threshold of being “grossly offensive.” The test is set out in the case of DPP v Collins [2006].[13] The message targeted persons who were a racial minority through a post on Facebook. The application of the test to determine whether the posts were grossly offensive, however, turned out to be negative. The tests aim at establishing whether the post was part of an established racial campaign, whether the post targeted individuals, and whether the matterfurthered a racial separation ideal. The court dismissed the matter, in concurrence with the idea of the DPP, that though the posts were offensive, they did not attain the standards of being grossly offensive.
The test of offensiveness is objective. In other words, it is based on the assessment or the thoughts that reasonable members of society would think when they see the post. Contextually, the message is offensive. However, it did not meet the grossly offensive standards above. The person who posted the message, for instance, promptly pulled it down when he realized that it might have had racial connotations. Further, he showed remorse and apologies for his deeds. All these factors reflect that the message was not grossly offensive.
The courts assess the posts made on social media platforms in relation to the contexts in which they were made. In the case of Stephens v Halfords Plc, [14]for instance, Stephen created a social media page. He was protesting against working for three out of four weekends. He titled the page “Halford workers against working for three out of four weekends.”[15] Further, he realized that he had breached the company’s policy in the process. Afterward, he pulled down the page and also made apologies for his actions. His actions led to his dismissal, nonetheless. However, the court found out that he was unfairly dismissed from duty.
The context above highlights the exercise of freedom of expression. Stephens was under pressure from working for three out of four weekends. His post on social media was an expression of his personal thoughts of the unfair practices at his workplace. However, his action was an affront to the workplace policy. The post was not necessarily wrong. The practice of engaging the employees in three out of four weekends is unfair. However, every employee needs to abide by the company’s policy. Stephens ought to have lodged a claim with the relevant authorities as part of the process of solving the unfair working conditions at Salford. Nonetheless, his actions of apologizing and pulling down the post on Facebook show sufficient remorse for his actions.
The threat or the exposure of private information is another element that leads to the limitation of the freedom of expression. Privacy can be an internal or an external element in a company or for an individual. In the case of Whitham v Club 24 Ltd,[16] for instance, the appellant was dismissed from his job. He worked at a company that provided customer services to Volkswagen Company. He posted information about his dissatisfaction with the unfair working environment at the company. The company dismissed him for the posts made. The court, in ruling that he was unfairly dis missed from work, noted that the comments made on a Facebook post were mild. It further indicated that the comments had limited viewership and readership as it was only visible to the employees.
The balance between freedom of expression and the right to privacy is delicate. The context above highlights the limits of freedom of speech. However, the sanctions to the limitation of the freedom of expression are limited to the scope of the privacy issues revealed. Stephen’s dismissal was ruled as an unfair dismissal since it revealed “mild private information” about Club 24 Ltd. Thus, the limitation of freedom of speech is influenced by aspects such as the context of the privacy revealed or other aspects that amount to the infringement of private information.
Indecent, menacing, or obscene character
The standards of obscenity are set within various statutory provisions in the United Kingdom. Nonetheless, it is necessary to note that the freedom of expression which is provided under the United Nations Declaration on Human Rights and the ECHR. Notably, freedom of speech ought to be understood that it involves information that the freedom of speech extends to information that
‘offend, shock or disturb the state or any sector of the population.’[17]
The statement above highlights the grounds that are underlined as standards of criminalizing elements of freedom of speech. Nonetheless, it is worth reflecting that messages that either shock, offend, or disturb are interpreted according to the contexts in which they are made rather than a general analysis of statements. Some statements which are shocking on the face could be ruled not to be an affront to freedom of speech.
Making statements that shock, offend, or disturb does not always mean that one is within his or her rights under the freedom of expression. Some of the statements that fall under this category are already criminalized.[18] Nonetheless, the courts address each matter based on the context and the circumstances. In the case detailed below, for instance, the assessment shows that the courts are objective in interpreting the circumstances of a statement.
In the case of Chambers v Director of Public Prosecutions,[19] the court was tasked with examining whether the statement made that an individual would “blow up the airport” was shocking or offending. The court of appeal overturned a previous ruling which had convicted the appellant. The court found that the statement was merely a joke. The court found out that the statement was only intended as a joke. It was not meant to shock or threaten to cause harm to the public.The context above shows that the progressive limitation of the freedom of expression ought to occur within an established contextual reflection.
Any material that is classified as obscene is criminalized from being posted online and on the social media platforms. Arguably, one cannot claim to use the freedom of speech to publish information that is obscene or pornographic. Freedom of speech is limited to the extent of aspects that corrupt public morality, as seen in the case of Handyside v the United Kingdom.[20]Elements such as pornography or instances where on posts face covered with fecal matter, for instance, are criminal.
Obscenity is criminalized in the United Kingdom. The reflection of obscene information on social media platforms attracts criminal sentences. Freedom of speech does not extend to elements that deprive the public of morality or corrupt their minds.[21] Practically, freedom of expression ought not to extend beyond such boundaries. It risks outrage from the public and creating social disorder. It can potentially harm the social welfare and social integration of the society by harming the moral fabric that binds the society together.
The context of the limitation of the freedom of expression, nonetheless, is debatable. It is difficult to determine what amounts to indecent acts. Indecent messages may amount to a statement that outrages the morality of an individual. The test applied is the “reasonable person’s test.” The grounds of reasonableness are whether a reasonable person would find such a message as indecent. The negative moral impact caused by the indecent message suffices as a ground for the limitation of the freedom of expression.
Racially aggravated posts on social media
The claim of the exercise of free speech does not apply when one posts information that is racially aggravated. In other words, information that harms the reputation of other persons or is racist cannot be protected by the freedom of expression. As seen in the case above, racism is illegal, and social media posts are not exempt from the limitation.
The views of racist messages have been subject to litigation in the United Kingdom. In 2012, a young boy named Azhar Ahmed took to Facebook and posted that the British soldiers deserved to die. At the time, the United Kingdom grappled with the tragic loss of six soldiers during the Afghanistan invasion.[22] The boy was charged with racially aggravated public disorder offense. He was found guilty, even though he pulled down his post on the social media platform and was sentenced to 240 hours of community service.
Conclusion
The right to freedom of speech is a universal right. It is established and protected by the constitution and a host of other international legal instruments. Nonetheless, there are limitations to the freedom of speech in an era where information technology is advancing at a great pace. Social media interactions are new fronts where individuals communicate at ease. There are hundreds of millions of daily users of social media platforms such as Facebook and Twitter. Any message or information that is derogatory, obscene, racist, or calls for social disobedience, though an expression of personal opinion, has the potential of reaching millions of people. Thus, social media platforms are public forums. The need to regulate the freedom of speech in contexts such as the areas noted above, therefore, arises as a necessity to maintain public order and morality. Nonetheless, such restraint and limitation to free speech need to be implemented objectively and with regard to the circumstances of each case.
Bibliography
Case laws
Bunt v Tilley [2006] EWHC 407 (QB); [2007] 1 WLR 1243
Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) DC.
DPP v Collins [2006] 1 WLR 2223
Godfrey v Demon Internet Service [2001] QB 201
Handyside v United Kingdom (5493/72)
R v Blackshaw [2011] EWCA Crim 2312.
Tamiz v Google Inc [2012] EWHC 449 (QB
Stephens v Halfords Plc Case No ET/1700796/10, February 2011.
Whitham v Club 24 Ltd (t/a Ventura) Case No ET/1810462/10, September 2011
Statutes
Communications Act of 2003
Crime and Disorder Act of 1998
European Convention on Human Rights
Human Rights Act of 1998
Obscene Publications Act 1964
Protection from Harassment Act of 1997
Public Order Act of 1986
Universal Declaration of Human Rights of 1948
Secondary source
McGoldrick, D., 2013. The limits of freedom of expression on Facebook and social networking
sites: A UK perspective. Human Rights Law Review, 13(1), pp.125-151.
[1] Article 10 [1] of the ECHR
[2] Godfrey v Demon Internet Service [2001] QB 201
[3]Tamiz v Google Inc [2012] EWHC 449 (QB
[4] EWHC 407 (QB); [2007] 1 WLR 1243
[5]EWCA Crim 2312.
[6]McGoldrick, D., 2013. The limits of freedom of expression on Facebook and social networking sites: A UK perspective. Human Rights Law Review, 13(1), pp.130
[7]Article 19 of the Universal declaration of human rights. UN General Assembly, 302(2).
[8] Human Rights Act
[9] Section 1 of the Protection Against Harassment Act of 1997
[10] Section 1 of the Protection Against Harassment Act of 1997
[11]Anti Social behavior Order made Crime and Disorder Act of 1998
[12] Section 127 (1) of the Communications Act of 2003
[13] DPP v Collins [2006] 1 WLR 2223
[14]Stephens v Halfords Plc Case No ET/1700796/10, February 2011.
[15] Ibid
[16]Whitham v Club 24 Ltd (t/a Ventura) Case No ET/1810462/10, September 2011
[17]McGoldrick, D., 2013. The limits of freedom of expression on Facebook and social networking sites: A UK perspective. Human Rights Law Review, 13(1), pp.134
[18]Handyside v United Kingdom (5493/72)
[19][2012] EWHC 2157 (Admin) DC.
[20] See supra note 14
[21]Obscene Publications Act 1964
[22]McGoldrick, D., 2013. The limits of freedom of expression on Facebook and social networking sites: A UK perspective. Human Rights Law Review, 13(1), pp.131