Free speech?  Sacred touchstone of a civilised society or an invitation to the malicious, misguided and just plain stupid to voice their opinions without fear of retaliation?  

A bit of both, frankly, with that debate and that balance made all the more important by the growth of social media sites which allow those opinions to reach more people more quickly than ever before.  The Communications Act 2003, enacted in response, makes it a criminal offence (six months in prison and/or a fine) to send electronic messages of this sort which are “grossly offensive or of an indecent, obscene or menacing character”.  To deal with messages which are not necessarily any of those, but are offensive on other grounds, the Public Order Act 1986 creates the offences of stirring up racial or religious hatred through the use of threatening, abusive or insulting words or written material which is intended to and could reasonably have that effect.   

Last week, the Director of Public Prosecutions http://www.cps.gov.uk/about/dpp.html said that criminal prosecutions under these Acts should not be brought in connection with one-off jokes made online unless they included threats or turned into campaigns of harassment.   In other words, just being ordinarily offensive is not enough to get you arrested.  This must obviously come as a relief to a number of late-night television “comedians”.   

Exhibit A – the student who tweeted racist comments on Twitter following a footballer’s collapse. His tweets were considered to be vile and abhorrent. He was jailed for 56 days.   

Exhibit B – the footballer who recently tweeted homophobic remarks about two Olympic divers. He insisted that his tweet was supposed to be funny, was not directed at anyone in particular, was not intended for a wider audience than friends and family and that he was frightfully sorry. He was not arrested.   

How many times have similar words been spoken in Employment Tribunals by Respondent witnesses faced with a charge of bullying or harassment? The line “It was only meant to be a joke, I didn’t mean to upset anyone, it was workplace banter” is heard again and again.  But in the employment world, online comments do not need to be grossly offensive, threatening or made as part of a campaign of harassment to be considered bullying or harassment.   

To protect freedom of speech, the bar for criminal prosecution needs to be high. Contrast this with the need to protect dignity and respect in the workplace however, which requires that the bar be much lower.  Where it is the employer who is under attack online by an employee, the employee’s right to freedom of expression under the Human Rights Act is limited by the employer’s need to protect its reputation and where one employee is being rude or offensive online to or about another, then no Human Rights Act considerations or lack of intention will prevent the employer treating it as a disciplinary matter, even though it may fall well short of troubling the criminal lawyers.  This is particularly (but not only) true where discriminatory comments are made.  So the message is feel free to take advantage of the DPP’s “concession” on criminal prosecutions if you really wish, but do not take it as meaning that the boundaries of acceptable behaviour in the workplace have relaxed in any way.