What a 150-hour community service sentence can tell us about free speech and online harassment. 
The internet is forever, as they all say. But have you ever made a mistake? Accidentally sent a screenshot to the wrong person? Reposted the wrong link? Sent a text you didn’t mean in the heat of the moment? Anonymously trashed a celebrity you secretly hate?
Not so anonymous as it turns out. The internet is forever.
In late February 2022, Joseph Kelly was sentenced to 150 hours of community service for sending “grossly offensive” tweets about the passing of Captain Sir Tom Moore.
Sir Captain Moore was well known British Army Officer knighted by the Queen and became well known for his philanthropic efforts, raising millions for the UK’s National Health Service (NHS) during the pandemic in 2020. Kelly tweeted “the only good Brit soldier is a deed one, burn auld fella buuuuurn” the day after Moore’s death in 2021, but quickly deleted it 20 minutes later. But not soon enough.
Early Internet and Free Speech
In the early days of the internet, the anonymity online was part of the appeal. The virtue of “anyone, anywhere [to] express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity” was one of great importance (Barlow, 1996). This optimism envisioned the internet as a level playing field, where people would have the same access to information and communal activities (Rainie, Anderson, & Albright, 2017).
But since these days of early optimism, the internet has evolved. After the dawn of Web 2.0, the influence of online platforms and social media forever altered the internet. Everyday 2.5 quintillion bytes of data is created online. We now live in an age where almost a majority of the globe has access to the internet. We’ve seen how the freedom to speak your mind with anonymity has come back to haunt us, as the internet has had a key role to play in influencing the public on critical economic and political decisions (Frier, Nix, & Kopit, 2021).
Free Speech Online
When looking at free speech online, it’s hard not to see when it’s been used for the worse. While Australia does not have free speech as part of our constitution, we can look to the US where the first amendment has been weaponised against the process of American democracy (Bazelon, 2020). The creation of extremist online communities helped to spread false stories of Donald Trump’s “stolen election” in 2020 on internet platforms, whose business models rely on keeping users as engaged as possible, where lies are most likely to go viral.
But these are extreme cases. There are obviously clear differences in spouting extremist political beliefs online and tweeting your thoughts on someone you dislike. However, it seems as though dealing with harassment online has become common place as a result of the freedom the internet has provided its users.
Many of us have had to deal with the negative impacts of the social internet at some point in our lives. In a 2021 survey of US adults, reportedly 41% of Americans have experienced some kind of online harassment in their lives (Vogels, 2021). These can be in severe forms that include physical threats, stalking, sustained harassment over a period of time, and sexual harassment, but the most prevalent forms seem to be less severe, taking the shape of offensive name-calling or purposeful embarrassment (Vogels, 2021). Seventy five percent of responders said this harassment had taken place on social media, and many feel that social media platforms aren’t doing their best to combat this (Vogels, 2021).
In the midst of a pandemic, online harassment has surged as anti-racism activism has swept online spaces. In protesting recent events of police brutality and fighting against the climate of a disease pandemic, the internet has brought about attacks on “scientists, public health experts, Asians, and Asian Americans” (Vilk, 2020).
Legal Punishments for Online Actions
So, when these incidents of online harassment happen, who should have to deal with the responsibility of these actions? At what point should such freedoms be moderated online?
We’ve seen the consequences of individuals weaponizing such freedoms to perpetuate disinformation campaigns as seen by the attempted insurrection of the US Capital building on January 6th, 2021.
As previously stated, Joseph Kelly, the UK twitter user was sentenced to 150 hours of community service under Section 127 of the 2003 Communications Act (Vincent, 2022). This legislation in the UK marks offense against the public sending of messages that can be called “grossly offensive or of an indecent, obscene or menacing character”. This fairly broad and ambiguous definition of offensive messaging has been used to sentence various other users on the internet, where some have used online platforms to ‘joke’ about terrorism, make insensitive comments regarding war, or make sexist, racist or homophobic comments (Vincent, 2022).
In the case of Kelly, it was decided that the objectionable tweet in question had surpassed the threshold of what is deemed grossly offensive as the UK twitter user was made an example of with this sentencing (The National, 2022). However, Kelly’s defence agent has stated that the tweets were made as a drunken mistake, tweeted to his small handful of followers, unaware of how far it could spread and was almost immediately deleted (The National, 2022). As tasteless and crude the tweet was, legal action can’t be the only way to combat such infractions online.
Is Online Harassment User or Platform Responsibility?
While legal consequences have been seen before, the speed at which the internet moves, the lack of centralised control, and the global nature of the online space, it is incredibly difficult for the legal system to be the only regulator of the web (Roberts, 1996).
Because of this, there have been questions as to who should take responsibility of such actions of online harassment. While Kelly made the tweets, shouldn’t Twitter have some safeguards to what is posted and what can be potentially harmful? But how can Twitter, or any other social media platform, be wholly responsible for the actions of their many, sometimes millions of individual users?
Twitter Regulations
Twitter has been known for its pulled back approach on regulating content on the social media platform, advocating for the freedom of expression, as put by Jack Dorsey, co-founder and former CEO of the site. However, in recent years the internet has become an increasingly politically polarising place, much of which stems from social media usage, and places like Twitter where users are encouraged to speak their minds with as little characters as possible (Andrejevic, 2019). Dorsey himself has admitted to the missteps of Twitter, hoping to place the security and privacy over its users that might adversely be impacted by these freedoms of expression (Thompson, 2018). Dorsey’s role as CEO of Twitter was replaced by Parag Agrawal in late 2021, where the platform was seen to be creating more regulations and restrictions (Skelding & Levine, 2021).
After the events of January 6th, Twitter was one of the first platforms to ban former president Donald Trump, for fear of ‘risk of further incitement of violence’. It can be argued that Trump’s actions fall outside the arguments of free speech, as he actively incited violence and mob lawlessness in Washington. From these actions it is clear that social media can have a profound effect on society in its ability to moderate what it shown online. Twitter has banned political advertising and has required false information flagging on misinformation and abusive language, but the balance between free speech and regulation is thin (Tusikov & Haggart, 2021).
Ethical Concerns
As previously stated, much of these online platforms operate outside of the bounds of legal systems because of the global and ever-evolving nature of the internet. Social media companies argue that they are not perpetuators or providers of information circulated by users, they are platforms and publishers (Van Dijck, Poell, & de Waal, 2018). However, the recent years’ uptick in online harassment and political polarisation has urged for the call of regulation. In discussing platform regulation, there is an ethical discussion to be had about the concerns of surveillance, censorship and privacy online.
While Trump’s online actions were in violation of the public interest of the American public, does Joseph Kelly’s distasteful tweet about a general’s death also require regulation and surveillance?
Prime Minister, Scott Morrison has spoken firmly on the topic of online trolls, calling social media platforms “a coward’s palace”, where users can vilify and harass with little repercussions due to the anonymous nature of the internet (Borys, 2021). Thus, a law has been suggested by the government that requires 100 points of official identification to open social media accounts, in an attempt to combat online harassment without anonymity (Thomas, 2021).
Online harassment is a growing issue of the internet, but there is not clear evidence to suggest that users posting abusive comments will stop if they must under their real names. Just looking at Facebook, where people are required to open accounts under their own names, there is a mass of people happy to post distasteful comments and do little to conceal their identities (Thomas, 2021). In fact, these restrictions have been practiced in places like South Korea with little success, only decreasing online abuse by 1% and showing short-term decrease in online participation with no long-term changes (Thomas, 2021).
The regulations of online platforms pose threats to the free speech and have the potential to further stifle underrepresented voices (Vilk, 2020). The implementation of proper names on online spaces has the ability to create real harm and discrimination in its requirement to reveal individual identities, having an adverse effect online (Vaas, 2017).
Joseph Kelly is a white man living in the UK but imagine the effect of a virally bad tweet on someone who falls into different underrepresented identities. The notion of freedom of speech online is one of great importance, but what about one’s freedom to privacy on platforms known to have issues of online abuse. Many Native American activists tried to sue after having reported a temporary Facebook suspension due to a lack of proof of identity. Drag queens have had to reveal their previously unknown identities online due to such regulations that can be potentially damaging.
It can be argued that the freedom to tweet inane comments about the recently dead is not something that should be advocated for, but the consequences of intense restrictions on internet platforms and social media communities can be detrimental to the ideals of free speech. Kelly’s sentence reminds us that he complexities of the internet and rules of social media companies are delicate. Thinking about punishments and regulation for online abuse, we have to consider the ramifications of their effects that can be weaponised on other communities. Until then, I guess the best we can do is be wary of our drunken tweets: the internet is forever.
References
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