My Lords, this group relates to communications offences. I will speak in support of Amendment 265, tabled by the noble Lord, Lord Moylan, and in support of his opposition to Clause 160 standing part of the Bill. I also have concerns about Amendments 267AA and 267AB, in the name of the noble Baroness, Lady Kennedy. Having heard her explanation, perhaps she can come back and give clarification regarding some of my concerns.
On Clause 160 and the false communications offence, unlike the noble Lord, Lord Moylan, I want to focus on psychological harm and the challenge this poses for freedom of expression. I know we have debated it
before but, in the context of the criminal law, it matters in a different way. It is worth us dwelling on at least some aspects of this.
The offence refers to what is described as causing
“non-trivial psychological or physical harm to a likely audience”.
As I understand it—maybe I want some clarity here—it is not necessary for the person sending the message to have intended to cause harm, yet there is a maximum sentence of 51 weeks in prison, a fine, or both. We need to have the context of a huge cultural shift when we consider the nature of the harm we are talking about.
J.S. Mill’s harm principle has now been expanded, as previously discussed, to include traumatic harm caused by words. Speakers are regularly no-platformed for ideas that we are told cause psychological harm, at universities and more broadly as part of the whole cancel culture discussion. Over the last decade, harm and safety have come no longer to refer just to physical safety but have been conflated. Historically, we understood the distinction between physical threats and violence as distinct from speech, however aggressive or incendiary that speech was; we did not say that speech was the same as or interchangeable with bullets or knives or violence—and now we do. I want us to at least pause here.
What counts as psychological harm is not a settled question. The worry is that we have an inability to ascertain objectively what psychological harm has occurred. This will inevitably lead to endless interpretation controversies and/or subjective claims-making, at least some of which could be in bad faith. There is no median with respect to how humans view or experience controversial content. There are wildly divergent sensibilities about what is psychologically harmful. The social media lawyer Graham Smith made a really good point when he said that speech is not a physical risk,
“a tripping hazard … a projecting nail … that will foreseeably cause injury … Speech is nuanced, subjectively perceived and capable of being reacted to in as many different ways as there are people.”
That is true.
We have seen an example of the potential disputes over what creates psychological harm in a case in the public realm over the past week. The former Culture Secretary, Nadine Dorries, who indeed oversaw much of this Bill in the other place, had her bullying claims against the SNP’s John Nicolson MP overturned by the standards watchdog. Her complaints had previously been upheld by the standards commissioner. John Nicolson tweeted, liked and retweet offensive and disparaging material about Ms Dorries 168 times over 24 hours—which, as they say, is a bit OTT. He “liked” tweets describing Ms Dorries as grotesque, a “vacuous goon” and much worse. It was no doubt very unpleasant for her and certainly a personalised pile-on—the kind of thing the noble Baroness, Lady Kennedy, just talked about—and Ms Dorries would say it was psychologically harmful. But her complaint was overturned by new evidence that led to the bullying claim being turned down. What was this evidence? Ms Dorries herself was a frequent and aggressive tweeter. So, somebody is
a recipient of something they say causes them psychological harm, and it has now been said that it does not matter because they are the kind of person who causes psychological harm to other people. My concern about turning this into a criminal offence is that the courts will be full of those kinds of arguments, which I do not think we want.
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One problem I have is that the Bill does not give any explicit protection in the public interest or for the purposes of debate around the use of such harm, even if, as has been indicated, false allegations are being made. People use hyperbole and exaggeration in political argument. Many of the big political questions of the day are not agreed on, and people accuse each other of lying all the time when it comes to anything from Brexit to gender. I am worried that inadvertently—I do not think anyone is trying to do this—Clause 160 will institutionalise and bake into primary legislation the core of cancel culture and lead to a more toxic climate than any of us would want.
I have some reservations about Amendment 267AB. I recognise and am full of admiration for the intention of the noble Baroness, Lady Kennedy, but the wording seems to make it an offence to issue
“a communication concerning death, rape, assault (sexual or otherwise) or disfigurement, knowing it will cause alarm or distress”.
I query how we would prove that someone knows it will cause offence, an issue that was slightly danced around. Also, a lot of content such as news websites, podcasts and various other communications could be said purposefully to cause alarm, offence or distress, perhaps because the intention is to shock people into realising what a war or a famine is like, or into understanding the dangers of groomers or suicide sites—the kind of things we have been discussing. During lockdown, the nudge unit explicitly issued communications about potential death that caused a great deal of alarm and distress. It had a public interest defence, which was that it was important that people were frightened into complying with the rules of lockdown, whatever one thinks of them. I do not see how that will not be caught up in this.
Amendment 267AA extends the offence to include encouraging someone else to commit harm. I understand that this is an attempt to deal with indirect misogynistic abuse that is not quite incitement but on the other hand seems to be A encouraging B—an indirect threat. I worry that if A encourages another person and that person does something as a consequence, it will lead to a “he told me to do it” defence and an abdication of responsibility. I have that qualm about it. The Member’s explanatory statement makes things even more difficult, using the phrase,
“if an individual sends a message which potentially encourages other individuals to carry out a harmful act”.
That is going to be wide open to abuse by all sorts of bad-faith complainants.
I say all this as someone who is regularly piled on. I noticed when I started to speak that the noble Baroness, Lady Stuart, is in her place. I remember my shock and horror when I saw the abuse she got some seven years ago and subsequently—really vicious, vile,
horrible abuse for her political stance. Such abuse often takes a very sexualised form if you are a woman. So I can say from my lived experience that I know what it feels like to be on the receiving end of vile, horrible, misogynistic pile-ons, and so do Joanna Cherry, Rosie Duffield and a lot of people involved in contentious political issues. We need to make politics more civil by having the arguments and the debates and not mischaracterising, delegitimising or demonising people. I am just not sure that a criminal intervention here is going to help. I think it might make matters worse.