When is an offensive social media post a crime?

Essex Police has defended its decision to investigate The Telegraph columnist Allison Pearson for potentially inciting racial hatred online with a post on X.

The offending post seems to have become public knowledge after The Guardian was contacted anonymously by the person behind the complaint. It was a re-post of a photo of supporters of a Pakistani political party, posing with two Greater Manchester Police officers, said the paper. Pearson had called the supporters "Jew haters", apparently confusing them for pro-Hamas activists. The post was deleted soon after it was posted.

The row has sparked outrage from leading figures on the right. Boris Johnson used his Daily Mail column to call the police involvement "redolent of the Soviet Union at its worst". And the new Tory leader, Kemi Badenoch, called for hate crime laws to be reviewed to protect free speech, said The Telegraph.

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All this follows a summer in which hate speech laws were repeatedly in the spotlight, following the heavy sentences handed out to people convicted of inciting violence online in relation to the Southport riots.

What does the law say about posting on social media?

In the UK, online communication and activity is subject to a range of restrictions in law. These include the Malicious Communications Act 1988 and the Communications Act 2003, both of which criminalise "indecent or grossly offensive" messages and threats; the Public Order Act 1986, which deals with offences of stirring up hatred on the grounds of race, religion or sexual discrimination, and the Terrorism Act 2006, which criminalises the publication and dissemination of material that could be seen as encouraging acts of terrorism.

Can you be arrested for 'offensive' social media posts?

For an offence to be committed under the Public Order Act 1986, the language must be "threatening, abusive or insulting" and "intended to or likely in all the circumstances to stir up hatred". Journalists can "fall foul of the act when reporting on extreme political statements", said Press Gazette.

Crown Prosecution Service guidelines state that the presence of prejudice or hatred towards a protected group "may sometimes elevate a communication that would otherwise not meet the high threshold" for "grossly offensive" content. However, the guidelines stress that any prosecutions must be in the public interest, and that "particular care must be taken where a criminal sanction is contemplated for the way in which a person has expressed themselves on social media".

What is a 'non-hate crime incident'?

Pearson has said she first thought her post was being investigated as a non-hate crime incident. This is an incident "motivated by hostility or prejudice towards people with a particular characteristic" but which does not "meet the threshold of a criminal offence", said The Guardian.

Non-hate crime incidents do not involve arrests or prosecutions, but are recorded as a form of information gathering, to help police build a broader picture of tensions and identify potential for escalation to criminal offences.

National Police Chiefs' Council chair Gavin Stephens defended the practice as "really important" at a recent policing conference, said the Wolverhampton Press & Star. Citing the role of social media in racially-fuelled riots, he said that "one of the things we're really clear on" is that "we do not to miss precursors to violence because we know the consequences can be severe".

What about free speech?

The difference between free speech and hate speech is a "complex area", said Stop Hate UK.

When it comes to online hate, "in order to strike a balance with freedom of speech, there is a high threshold for evidence to prosecute grossly offensive, obscene or malicious communications".

But there has been much debate about whether the current law goes far enough. The new Online Safety Act, due to come into force next year, introduces measures to regulate content and protect individuals online – including the requirement for social media platforms to remove "harmful content" and take action against online abuse and misinformation.

The act is being viewed by leaders as a "silver bullet to curb the threat of future violence", said the Christian Science Monitor. But it has already been "strongly criticised by all sides", with human-rights groups repeatedly warning that it threatens user privacy and harms free speech, while others, such as London Mayor Sadiq Khan, "believe the law does not go far enough". The government is "forced to walk a difficult tightrope", said the international news site.

What are the penalties for going too far?

In response to the August riots, the CPS shared a video on X warning people to "think before you post", as the legal system "will prosecute when the legal test is met".

Indeed, a 53-year-old woman has already been sentenced to 15 months in jail for sending a communication threatening death or serious harm, after she posted on her local community's Facebook group: "Don't protect the mosques. Blow the mosque up with adults in it."

But "prosecution is not the only concern", said Banner Jones solicitors. Employees in the UK "can face disciplinary action or even be dismissed from their job if they post inappropriate content on social media". Many companies now have a social-media policy and "any comments that damage the brand's reputation, including comments about customers or the business, could be grounds for dismissal".