JLD highly commended essay: Is social media the greatest arbiter of free speech?
Read the highly commended essay from the 2021 Junior Lawyers Division essay competition, by Ndifreke Ekaette.
Statute that governs free speech
Yes. It can be argued that social media is the greatest arbiter of free speech because it has laws that govern, control, and regulate the activity of free speech. This is evident in the Malicious Communications Act 1998 (MCA 1998) and Communications Act 2003. The purpose of the MCA 1998 was to protect against communications that concerned hard-copy hate mail and threatening or demanding letters. The MCA can be applied in contemporary society to messages or content published online.
The crown prosecution service (CPS) in particular, has found that one of the offences committed under the MCA 1998 is most likely to be committed by the sending of communications through social media. The CPS has defined social media as the use of electronic devices intended to create, share or exchange information, ideas, pictures and videos with other virtual communities and networks. The CPS has reported that communication sent through social media can involve the commission of a range of exiting offences against the person, public, justice, sexual or public order offence. Furthermore, the communication may involve the commission of communications offences.
In the case of Chambers v DPP  EWHC 2157 (Admin)  1 All ER 149, the statement “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!” was mirrored against his right to freedom of expression in article 10(1) of the ECHR [European Convention on Human Rights]. The judgment suggested that such a statement did not infringe his right.
However, the issue was whether the statement was of a “menacing character” that would be consistent with section 127(a) of the Communications Act 2003. It was held that once a statement has been posted on Twitter it constitutes as a “message” as it is sent by a public electronic communications network, which is consistent with section 127(a) of the Communications Act 2003. This was concluded, despite the fact that Twitter is privately owned. The message was termed content on the website. This case demonstrates that such communication can come under regulation and people have the right to exercise their free speech on social media.
Freedom of expression and free speech
It can be argued that, once free speech is exercised, it becomes a war of defence concerning the actuality of what free speech is and the need to protect the freedom of expression. This was evident in the case of the Sunday Times v United Kingdom (Application No.6538/74) . It was held that the law must be formed with sufficient precision so a citizen is able to regulate his conduct, by being able to foresee what is reasonable and what type of consequences an action may cause.
The Oxford Languages defines free speech as “the right to express any opinions without censorship or restraint”. This is complemented by the Amnesty International notion of free speech. Amnesty Inter-national defines free speech as “the right to seek, receive and impart information and ideas of all kinds, by any means”. Freedom of speech and the right to freedom of expression can be applied to the expression of ideologies, including those that can be deemed seriously offensive.
The US Supreme Court Justice Anthony Kennedy, who is currently retired, in Packingham v North Carolina (2017) 44 BHRC 522, objectively observed that the greatest battleground for free expression both nationally and globally occurs online with social media. The common issue that can arise is when comments become offensive towards government officials. This has led to government officials in America blocking or removing critical comments online.
It can be argued that free speech is commonplace and expected in a fast-pace democratic society. In the milestone case for free press/libel decision in New York Times Co v Sullivan 376 U.S. 254 (1964), Justice William Brennan wrote that there is a profound national commitment that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
The influence of social media
However, it is the influence of social media that has had the greatest impact on free speech. It firstly gives people a voice and an outlet to be heard. A voice on social media can foster change. For instance, the Eighth Amendment in Ireland that triggered political debates by many people in the world. Social media provided them with a platform, so they could share what was known to them as heart-breaking and emotional reasons for voting “yes”. On 25 May in 2018, all those who voted “yes” celebrated their success in the campaign. Such celebrations continued online.
In comparison to the legal process, which is known to move slowly, social media promotes fast judgements by providing an unending stream of responses through videos, words and images. It can be argued that social media has the potential to undermine the judicial process by inciting the court of public opinion. The judicial process does not provide quick and accessible answers to complicated problems. In July 2015, it was founded that the case of Regina v F & D (see full case information in final reference below number 9) had to be re-trialled. This was because of several comments posted on social media. It was concluded that there was a serious threat to the trial which was unprecedented at the time. The attorney general issued a call for evidence to gather information on the impact social media has on the criminal justice system.
In contemporary society, social media has become one of the main sources of obtaining information. This has often replaced reputable news sources. It becomes difficult to distinguish between fact, fiction and propaganda. Therefore, what is streamed as news can be at times fabricated. Nonetheless social media remains a powerful platform to demonstrate a viewpoint on a particular topic. Therefore, an arbiter of free speech through social media has becomes a forceful recognition of what needs to change in uncertain times.
- Jeremy Harris and Emily Nuttal Kemp Little LLP (Deloitte Legal) ‘Social Media Offences’. Practical Law resource ID:3-616-4951
- Social media – Guidelines on prosecuting cases involving communications sent via social media
- Chambers v DPP  EWHC 2157
- Global freedom of expression Columbia University: The Sunday Times v United Kingdom
- Oxford University Press Dictionary
- What is freedom of speech?
- David L. Hudson JR: Free speech or censorship? Social media litigation is a hot legal battle ground
- Elizabeth Hurst: How social media affects law
- Attorney General’s Office: Response to call for evidence on the impact of social media on the administration of justice March 2019
- Mark A. Cohen: Law in the age of social media
- Sophia Tomalin: What effect is social media having on society?