Social media and free speech (again): the Tom Daley Twitter case

Tom Daley – one of the victims of the homophobic tweet

A few weeks ago, I posted about the “Twitter joke case”, in which Paul Chambers’s conviction for tweeting about “blowing [an] airport sky high” was overturned. The case raised important questions about how freedom of speech, exercised via social media, is to be balanced against competing considerations (eg protecting people from the upset liable to be caused by statements – unlike Chambers’s – that might be taken to be credible threats). Those questions arise in an unfamiliar way when social media sites like Twitter or Facebook are involved. Remarks made via such sites have a greater degree of permanence and a potentially greater reach than remarks made in oral conversation – and are so more likely to come to the attention of prosecuting authorities. And remarks made online may be regulated in ways (eg via the Communications Act 2003) that simply would not apply to remarks made verbally.

Earlier today, these issues were addressed (in a preliminary way) by Keir Starmer, the Director of Public Prosecutions. He announced that Daniel Thomas, a semi-professional footballer, would not be prosecuted for a homophobic tweet concerning Olympic divers Tom Daley and Peter Waterfield. The DPP had to decide whether the tweet was “so grossly offensive as to be criminal and, if so, whether a prosecution is required in the public interest”. Prosecutors decided that Thomas’s tweet did not cross that threshold. In coming to that conclusion, they took account of the fact that the right to freedom of speech includes the right to say things that “offend, shock or disturb the state or any sector of the population”. In particular, they considered the following matters:

(a) However misguided, Mr Thomas intended the message to be humorous.

(b) However naïve, Mr Thomas did not intend the message to go beyond his followers, who were mainly friends and family.

(c) Mr Thomas took reasonably swift action to remove the message.

(d) Mr Thomas has expressed remorse and was, for a period, suspended by his football club.

(e) Neither Mr Daley nor Mr Waterfield were the intended recipients of the message and neither knew of its existence until it was brought to their attention following reports in the media.

The DPP concluded his statement by acknowledging that greater clarity is needed in this area, and recognised that questions about the extent of free speech need to be considered carefully in the context of social media:

Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

None of this is to suggest that people should be free to say whatever they like via social networking sites – just as the law does not give people absolute freedom to say what they like verbally. But it is an important acknowledgment that the internet allows for novel – and hard-to-categorise – forms of social interaction that have at least something in common with everyday conversation. And this, in turn, raises questions about whether (and if so how) conversations conducted via social media should be regulated more strictly by the law than conversations conducted via more traditional means. The question is not whether homophobic comments are acceptable: they are not. Rather, the question is about how much more extensive legal regulation of such comments should be when they are made in a conversation conducted via, say, Twitter or Facebook as opposed to verbally. Technology often leaves the law with some catching up to do; the DPP’s statement suggests that, in the present context, the catching-up process is now underway.

Image above reproduced under Creative Commons Licence.

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