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  5. Why social media needs a health warning

Since the murder of journalists at Charlie Hebdo in Paris, the words “freedom of expression” have seldom been more in the public domain. From Prime Ministers, Presidents and even the Pope we continue to hear the clamor that there should be no restrictions on free speech.

Whilst the supporters of the principle argue vehemently that there should be no barriers to that right, the reality is somewhat different. There are numerous restrictions on what can and can’t be said or written.

Article 10 of the European Convention on Human Rights states that everyone has the right to freedom of expression. The right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. However it qualifies that right by stating that the exercise of those freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law. It then sets out those restrictions namely: – “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The European Court of Human Rights has made it perfectly clear however that Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. The safeguard afforded by Article 10 in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

Putting to one side any moral argument over whether one should try to offend through free speech the domestic law in Scotland is restricted both by way of civil law but also criminal law.

There are numerous statutes, which restrict freedom of expression with criminal consequences. They include Protection from Harassment Act 1997, Communications Act 2003 and Contempt of Court Act 1981. They also include The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 which criminalises behaviour that is threatening, hateful or otherwise offensive at a regulated football match including offensive singing or chanting.

It also criminalises the communication of threats of serious violence and threats intended to incite religious hatred, whether sent through the post or posted on the internet.

In the current debate however the Act does not restrict freedom of speech including the right to criticise or comment on religion or non-religious beliefs, even in harsh terms or criminalise jokes and satire about religion or non-religious belief.

In civil law there are boundaries, which have nothing to do with criminal law that can’t be crossed without running the risk of being sued in defamation.

From personal experience more and more of these defamation issues are arising through blogs and the internet. There seems to be a disconnect between the poster’s brain and keyboard.

In many of these cases the ultimate difficulty is the recovery of any damages from the poster. Its all good and well having a remedy in law but if the poster has no assets to attack then is there any real point in spending money to achieve a worthless decree. If there is any element of criminality then it is much sounder advice to report the matter to the police and let them investigate.

The Lord Advocate, Frank Mulholland QC, summed it up when releasing a set of social media prosecution guidelines to provide clarity about what kinds of online communication amount to criminal offences. “The rule of thumb is simple — if it would be illegal to say it on the street, it is illegal to say it online”. The same general principle applies to defamation. If you wouldn’t say it or publish it to a large audience then don’t post it online. One would have thought that there have been enough high profile cases for that message to sink in but clearly it hasn’t. In one case coming before the Scottish courts later this year the defender used the hashtag “paedophile” to describe a homosexual teacher. Perhaps for some individuals smart phones and tablets should carry health warnings.