So if we now imagine such a world with totally unrestricted speech, then we would have a world where someone could maliciously destroy the reputation of a person with no proof of such claims leaving the person in a situation having lost everything with no recourse. It would allow the likes of racists and homophobes to spout of nonsense in public places with no ability to stop it. It would allow people to send malicious hate mail and death threats with impunity.
For myself, those alone are good enough reasons not to have an unrestricted right to freedom of expression. But it leaves us with a question that if we are going to draw a line in the sand then just where do we draw it.
Now the tort of deformation is a good limit on things, as it is there to ensure that falsehoods are not publicised in a way to cause prima facia damage to another legal body that leaves them at a detriment. Giving them recourse through the civil courts to claim damages for any harm done for any publication of such statements. But there is a logical “fair comment” defence so if you were to say that so and so was a bit of a bumbling idiot; and if the court based on evidence provided thinks your words are such that could be held by another then even if he’s not the dictionary definition of an idiot you would not be found guilty.
Which leads us on to comments that may cause offence to people, and how do we decide if at all that these should have sanctions attached to them. Now this I think we can easily break down in to two sections those being comments that may cause offence to someone and comments that are designed to cause deliberate offence.
Let’s take the first of these, a comment that is made which may offend someone. Now these I don’t think there should be any legislation be that criminal or civil attached to these comments. For example when you have a discussion with someone there is a chance that something you say to them may offend you. Recently I have been talking to a Mormon and we have been debating marriage equality now his view point on the subject offends me and likewise mine may offend him. But to ban such comments because they may offend would stifle all debate in the world and lots of conversation. So to limit such acts because it may offend someone would be well silly.
So this leaves us with the people disseminating information with the intent to cause offence. Which if you know anything about intent leaves two types of intent those being basically reckless intent and direct intent. Now the first being reckless intent would be I think silly to have sanctions attached as this would be something like a husband and wife arguing over something and one calling the other a “stupid fool” or words to that effect. Although it’s insulting and offensive it’s not something that was planed of premeditated and would be harsh to punish someone for such a comment.
This brings us to direct intent; where the person has sat down and thought about their actions and has made a conscious decision to inflict harm on another person(s) through saying or writing something. This is personally where I think we need to start drawing lines in the sand, the obvious and easy one to start with is racist comments; where I think that we don’t set guidance for what is and isn’t punishable but more let the sentence reflect the level of severity of the offence. We could probably extend that to some other things like homophobia and alike.
But it leaves us then with general offensive comments like wishing someone dead, or mocking someone for something or making threats of physical violence. Now the final one is easy we’ve just had the twitter joke trial and the courts said if it’s said in jest then it should be considered that way, but I think but if someone says something that isn’t a joke then I think it is something the police and courts should look in to, as this isn’t free speech it is technically an assault.
Now the rest of them I think it is fair to have some form of punishment for deliberately causing another person harm; but I think that any law has to be both proportionate and have an objective test attached to it. So would a reasonable person be offended to a substantive level for a conviction to be reached. So for any prosecution to occur you would have to show the victim suffered harm as a result of the words, that a reasonable person would have found the comments substantially offensive and that the perpetrator maliciously with intent set about causing that harm.
So a couple of examples to help people get to grips with it, now let’s say I called Polly Toynbee a stupid Champaign Socialist and a hypocrite. Now she may well take offence to that and be hurt but if you consider the facts a reasonable person may say yes it’s a bit offensive but not sufficient to prosecute someone.
But if I said something like “you fucking whore, you look like you’ve had your face smashed in with a bucket and people like you would be better off dead”. Is also offensive and a reasonable person would probably think that it’s not nice to go around saying things like that to random strangers, so there is the possibility something like that could go to court because the only reason to say such a thing was to cause someone some harm.
Now I don’t believe this because I think we need to limit peoples speech and stop people saying things, but because causing someone psychological harm in my opinion is as bad as causing physical harm to someone. We have big campaigns within schools to stop bullying because we know the harm it can do to children, but I think adults are as susceptible to the same harm from people deliberately trying to cause them harm; and that is the key here that we should be punishing people for causing deliberate harm to other people.