Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week.
Partial victory over online censorship bill
Yesterday brought news that the Government is due to remove the ‘legal but harmful’ clause from the Online Safety Bill, a major victory for all the free speech groups that have been campaigning for this, including the FSU (i, Sun, Guido Fawkes). As Fraser Nelson points out in the Spectator, Rishi Sunak and Culture Secretary Michelle Donelan deserve credit for having made good on their pledges to look at this clause again.
However, the battle is not over. As FSU General Secretary Toby Young makes clear in today’s Telegraph, there’s a little-known flaw in the Bill that risks making Nicola Sturgeon the content moderator for the whole of the UK.
The FSU highlighted this flaw in discussions with Chris Philp, then the Digital Minister, earlier this year. The definition of illegal content in clause 52 (12) of the bill states that the content social media platforms will have a legal duty to remove in every part of the UK will be content that’s illegal in any part of the UK (“offence means any offence under the law of any part of the United Kingdom”). Failure to remove such content could result in those platforms being fined up to 10% of their annual global turnover.
The obvious difficulty with that is it means the big social media companies like YouTube, Facebook and Twitter would have to remove something it’s unlawful to say in Scotland in every part of the UK — hence the claim that the Bill will effectively appoint Nicola Sturgeon as content moderator for the entire population.
That’s particularly concerning given that last year Scotland’s Hate Crime and Public Order (Scotland) Act received Royal Assent. Among other things, this “authoritarian mess” of an Act (as the FSU’s Scottish Advisory Council member Jamie Gillies describes it for Spiked) makes it a criminal offence, punishable by up to seven years in prison, for a person to behave in a threatening or abusive manner or to communicate material considered threatening or abusive to another person with the intention of “stirring up hatred” against people on the grounds of: age; disability, religion, sexual orientation, transgender identity, or variations in sex characteristics (intersex).
In effect, if a feminist says in Scotland that she doesn’t think transwomen are women, she could be prosecuted for stirring up hatred. And because of the clause in the Online Safety Bill that states that “offence means any offence under the law or any part of the United Kingdom”, the big social media platforms would also then have to remove any such content across the whole of the UK.
Having been made aware of this problem, the Government attempted to address it last July by making the following amendment:
Clause 52, page 49, line 13, leave out paragraph (d) and insert —
“(d) an offence within subsection (4A).
(4A) An offence is within this subsection if —
(a) it is not a priority offence,
(b) the victim or intended victim of the offence is an individual (or individuals), and
(c) the offence is created by this Act or, before or after this Act is
passed, by —
(i) another Act,
(ii) an Order in Council,
(iii) an order, rules or regulations made under an Act by the Secretary of State or other Minister of the Crown, including such an instrument made jointly with a devolved authority, or
(iv) devolved subordinate legislation made by a devolved authority with the consent of the Secretary of State or other Minister of the Crown.”
We think this will probably mean the Hate Crime and Public Order (Scotland) Act won’t affect what people can and can’t say online in the rest of the UK, since that was passed last year by a devolved authority without the consent of the Secretary of State. The amendment is still unsatisfactory, however, because it creates a loophole whereby a future minority Labour Government, knowing it wouldn’t get some draconian new anti-free speech law through the House of Commons, could simply approve that law after it’s been passed by Nicola Sturgeon’s devolved government in Holyrood. In other words, despite this amendment Sturgeon could still become the de facto content moderator for the whole of the UK with the consent of whoever the Culture Secretary is at the time.
The other difficulty with the amendment is as follows. On the recommendation of the Law Commission of England and Wales, the Online Safety Bill, as written, will repeal s127 of the Communications Act 2003 (which makes it an offense to say something “grossly offensive”), as well as the Malicious Communications Act 1998, and replace those offences with a new harmful communications offence, whereby it becomes an offence, punishable by up to two years in prison, to say something that causes another person “serious distress”.
As you might imagine, the FSU has reservations about this new harmful communications offence. The critical issue here, though, is that the Online Safety Bill will only repeal the above communications offences in England and Wales, not Scotland or NI, thereby creating a risk that social media platforms within scope of the new online regulatory regime will not only have to remove content that is unlawful under the new harmful communications offence, but content that’s unlawful under s127 of the Communications Act, since that will remain on the statute books in Scotland and NI, as well as the Malicious Communications Act, since that will remain on the statute book in NI. (It was never applicable to Scotland.)
Does the Government’s amendment address that? We don’t think that it does. The Malicious Communications Act was passed in 1998, and so meets the tests set out in the amendment, as does the Communications Act, since the Communications (Scotland) Act 2003 applied to the whole of the UK.
‘So what?’, you might think. And yet given there’s a chance that Labour will form a minority government supported by the SNP after the next general election, here too the Online Safety Bill, as written, seems capable of granting Nicola Sturgeon the power to determine what everyone in the rest of the UK is allowed to say online.
Let’s hope the Government does more to address this little-known flaw in the legislation when the Bill comes back before Parliament.
Preacher Franklin Graham wins free speech legal victory
Back in 2020, Christian activist Franklin Graham – son of the famous preacher, the late Billy Graham – hired Glasgow’s Hydro arena for a large evangelistic rally. Following protests regarding Mr Graham’s allegedly “hateful” views, however, the booking was cancelled, and the Billy Graham Evangelistic Association (BGEA) then sued the body which runs the Hydro arena – the Scottish Event Campus (SEC) – for financial losses arising from that cancellation.
As FSU Scottish Advisory Council member Murdo Fraser points out, “one does not have to be sympathetic to Mr Graham’s opinions on any matter, or to be an enthusiast for his style of mass evangelism, to see that the cancellation of the event by the SEC was an afront to free speech” (Scotsman). “In a free and liberal democracy,” he adds, “there should always be a presumption that people are free to express their opinions even when they may cause offence to others.”
Sheriff John McCormick apparently shares that sentiment. Last week he ruled that the SEC had discriminated against the BGEA and ordered the venue to pay almost £100,000 in damages. The judgment handed down (and available here) ruled heavily in favour of the pursuers (BBC, Christian Today, Mail, Scottish Legal, Scottish Daily Express, Times), with Sheriff McCormick delivering something of a judicial slap-down to the protestors – or “censorious moralising prigs” as Alex Massie called them (Times).
The media narrative surrounding this case has always been that the SEC cancelled the event following protests by Glasgow’s LGBT+ Interfaith Network and several individuals, including two Church of Scotland ministers, who alleged that views expressed by Mr Graham in the past were “hateful, Islamophobic, and homophobic” (Mail, Scotsman, Times). Scottish Greens MSP Patrick Harvie – now a government minister – also lobbied the SEC seeking to have the event cancelled. Graham, he argued, peddles “a toxic and dangerous agenda” that is “utterly at odds with the values of a civilised society”. But did the SEC need much persuasion before pulling the plug (Glasgow Times)? The body’s major shareholder is Glasgow City Council, and as the documents referenced in Sheriff McCormick’s judgement make abundantly clear, Mr Graham’s event was ultimately cancelled because senior local government officials didn’t wish for it to go ahead – they were, in the Sheriff’s words, “searching for a reason to terminate the agreement”.
The minutes from a council board meeting claim “it’s about ‘doing the right thing’ notwithstanding the contractual position”. As Alex Massie translates, “doing ‘the right thing’ here means discriminating against people on the grounds of their presumed beliefs and suppressing their speech rights” (Times). According to her own testimony, Glasgow City Council’s leader, Susan Aitken, felt that the event had to be cancelled because “the expression of [Graham’s] views” might have unspecified “real-life consequences for people in Glasgow”. As Adam Tomkins points out, the “real-life consequences” of having to tolerate those with whom we disagree is entirely positive for grown-up citizens, but the Ms Aitkins of the world seem to believe that views and opinions that fall beyond their own, narrowly drawn moral boundaries are irredeemably oppressive, exclusionary and – literally – harmful (Herald).
The BGEA’s legal case was that the cancellation of the event contravened the Equality Act 2010, which protects religious or philosophical beliefs, and free speech. What’s particularly heartening about Sheriff McCormick’s judgement is how comprehensively he found in favour of the BGEA.
The Equality Act is “designed to protect cornerstone rights and freedoms within a pluralist society”, and “it does not exist to protect or privilege one section of society over others; it applies to all”. By terminating its contractual agreement “SEC directly discriminated against BGEA in that it treated them less favourably than it would have treated others”. The judgement continues: “for the purposes of this decision” it was irrelevant whether others “agree with, disagree with or even, as was submitted on behalf of the pursuer, find abhorrent, the opinions of the pursuers or Franklin Graham”. Why “irrelevant”? Because the Court “does not adjudicate on the validity of religious or philosophical beliefs”, and in relation to a characteristic with existing protection under the Equality Act – “religion or philosophical belief” – it is a simple matter of law that “no section of society can discriminate against those with whom he, she, or they disagree”. In other words, Mr Graham’s beliefs are protected in law regardless of what Ms Aitken might think of them.
Sheriff McCormick also observes that “a theme amongst those seeking cancellation of the event included prefacing their remarks with a professed belief in free speech, while denying that right to others and denying third parties their choice to attend”. Ouch.
Isn’t it the case, reflects Alex Massie, that “the real bigots here are those who seek to suppress lawful speech simply because they disapprove of it”, and that “a better country would be ashamed to have people who think like this in positions of such authority”? On the point about “the real bigots”, Murdo Fraser would almost certainly agree. But you get the sense he’d prefer a little less of that “better country” stuff. Perhaps he’s got a point – after all, wasn’t it Sheriff McCormick who played the starring role in this courtroom based free speech thriller? “Thank goodness,” the Conservative MSP for Mid Scotland and Fife sighs patriotically, “we have Scottish courts defending free speech.”
‘PayPal amendment’ to the Financial Services and Markets Bill gains traction!
We want to thank all of our members who’ve written to their MPs, urging them to support Sally-Ann Hart’s amendment to the Financial Services and Markets Bill which would make it illegal for a payment processor like PayPal to deplatform customers for political reasons. (You can watch Sally-Ann speak about the importance of her amendment on TalkTV here.)
Following discussions with Andrew Griffith, the Bill minister, Sally-Ann has now withdrawn the amendment because he has promised to come back with a constructive proposal about how to address the problem. The fact that the Government is taking this issue seriously is testimony to how many MPs have told their whips they want something to be done – and that’s thanks to all the emails they’ve received from our members.
But we need to keep up the pressure, so if you haven’t done so already, please send the slightly revised version of our template email to your MP, letting them know how opposed you are to this new and sinister form of censorship. It only takes two minutes to fill out the form.
This is a critically important battle. If we don’t pass a law to rein in companies like PayPal, we will soon see the emergence of a Chinese-style social credit system in the UK, except instead of ideological dogma being enforced by the Communist authorities it will be enforced by woke capitalist corporations.
The FSU ranks payment processors and crowdfunding platforms
The FSU has published a briefing paper in which Carrie Clark, our Research Officer, has looked at the terms and conditions of the major payment processors and crowdfunding platforms and given them a score out of 10 according to how friendly towards free speech they are.
It’s not good news. Only two of the seven get a score of more than 5/10, with the remaining five scoring 4/10 or below. The only payment processors we recommend for users concerned about protecting their free speech are Worldpay (8/10) and Stripe (7/10). We don’t recommend any of the crowdfunding platforms.
The difficulty Carrie identifies is that most of these companies include subjective, ambiguous words and phrases in their policies, prohibiting things like ‘misinformation’, ‘hate speech’, ‘offence’ and ‘intolerance’. Many say they won’t simply cancel users who engage in these activities on their platforms (and in some cases retain the funds in their accounts), but also cancel those who commit these sins more generally on social media and the like. Most go even further and retain the right to demonetise their customers for any reason whatsoever at their sole discretion.
You can read Carrie’s report here.
The FSU would love to hear from you!
Thanks to your support, we have been helping to defend our members’ free speech rights for more than two and a half years! But we rely on direct feedback from you to gain a deeper understanding of who are members are and where we should be targeting our support. We have put together a short survey to gather your thoughts and to tailor what we offer in the future. Please follow this link to complete the survey. We will share a summary of the results in a future FSU newsletter.
Joe Kelly fundraiser – show your support
Joe Kelly was convicted and sentenced in Scotland for contravening the Communications Act 2003, section 127(1)(b), which makes it a criminal offence to make an electronic post which is “grossly offensive”. Joe was at home on 3rd February, 2021 when he tweeted “the only good Brit soldier is a deed [i.e., dead] one, burn auld fella buuuuurn” along with a picture of Captain Tom, who’d just died. The tweet was only visible to his handful of followers for 20 minutes before he began to receive threats directed against him and his family and deleted it. It wasn’t fast enough, however: someone had already reported Joe to the police. So began a long legal process.
Scotland’s prosecution service decided to throw the book at Joe, and despite his counsel’s attempt to defend his right to free speech (which includes, as Lord Sedley stated, the “heretical, unwelcome and provocative”) he was convicted and sentenced to a community payback order. Having had his appeal denied by the Scottish Courts and having been labelled an “example case” to deter others from “pressing the blue button” and posting allegedly offensive content, Joe is now seeking to take his case to the European Court of Human Rights in Strasbourg. And we’re supporting him.
Yes, Kelly’s tweet was offensive. But the right to offend is a crucial element of free speech, and it certainly shouldn’t be the business of the police or the courts to protect people from hurty feelings. That’s why this case is about more than just Joe Kelly’s tweet. It’s about ensuring this “deterrence” (i.e., “chilling effect”) on free expression does not materialise. And it is about ensuring Scotland is not left behind as the only country in the UK in which it’s illegal to say something “grossly offensive”, which it will be if the Communications Act is repealed in the rest of the UK.
It’s on these grounds that one of Scotland’s most senior legal figures has now backed Mr Kelly’s appeal (Times). Roddy Dunlop KC, dean of the Faculty of Advocates, this week Tweeted: “The tweet was disgusting, in my honest opinion. But we are at the very sharp edge of where the merely offensive becomes an actual offence. A case to watch for sure. Fred Mackintosh will argue it convincingly.”
The “Fred Mackintosh” Mr Dunlop alludes to is Joe Kelly’s counsel. If the appeal process goes ahead, Mr Mackintosh and Joe’s lawyer, Cameron Smith, will argue that statements made by means of a public telecommunications system, like Kelly’s tweet, do not need to have artistic or political meaning for them be protected by the right to free speech laid down in the European Convention on Human Rights. If applied in the way that the Sheriff did in Kelly’s case, the term “grossly offensive” is far too vague and his conviction will have a chilling effect. A person’s right to freedom of speech should not be subject to interference on this basis.
We know this is a tough case and not all our members will support us. But if you do, please consider donating to the crowdfunder. Any donations made are to fund the legal expenses associated with preparing an application to the European Court of Human Rights. If permission to hear the case at the European level is granted, we hope the remainder of the case will be funded by the Court’s own system of legal aid.
Pledge your support here.
The FSU’s packed schedule of events
Don’t miss the chance to join our Online Speakeasy with historian and television presenter Neil Oliver on Wednesday 9th November at 6.30pm. Please register here to receive the Zoom link.
In addition, it’s time to round up your comedy-loving friends and family for The FSU Christmas Special, a one night only extravaganza of comedy with a fabulous line-up, organised in association with Comedy Unleashed – the home of free-thinking comedy. The event takes place on the evening of Monday 12th December at the Backyard Comedy Club in Bethnal Green.
Comedy legend Bobby Davro is our Master of Ceremonies and Bobby will be joined by stand-up comedian, comedy entrepreneur and star of They Think It’s All Over Lee Hurst, as well as Comedy Unleashed favourite Mary Bourke and comedian and GB News presenter Simon Evans.
These tickets are about to go on general release, so please book now to secure tickets at your special discounted member-rate. You can do that here.
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