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UK police action over “liking” a Facebook post could signal a dangerous prosecution trend

zipped-mouthBy Simon Davies

Police in the southern England borough of Kent are considering whether to lay criminal charges against a local councillor for “liking” the Facebook post of a colleague. The move signals a bizarre twist in British policing from extending criminal evidence from content to context. This has the potential to create a serious chilling effect on free expression.

The case also highlights a rare situation in which the right to privacy collides with the protection of free speech.

Simon Moores: one of the Margate Three

Simon Moores: one of the Margate Three

The case highlights a rare situation in which the right to privacy collides with the protection of free speech. This UK episode is the latest turn in a heated dispute over a Tesco supermarket development in the town of Margate. Tory councillors Dr. Simon Moores, Mick Tomlinson and an unnamed colleague have been questioned under caution by police over accusations of conspiracy to harass an opponent of the development.

Moores, who can best be described as a pacifist, was stunned by the allegation, but was even more surprised when police started using anonymous comments, made on his popular Thanet Life blog, under a statement on the development from local MP, Sir Roger Gale, as evidence to support the allegation.

However the most disquieting aspect of the police action is that the unnamed councillor faces criminal charges for doing no more than “liking” a Facebook post of the former mayor of Margate, pointing out that an objector’s artist’s impression of the proposed Tesco development is in the wrong place and of the wrong size. The development’s opponent claims this was “offensive” to her and complained she was the subject of criminal harassment by the three prominent local councillors.

Police have spent the last two months considering whether to proceed with charges.

The case highlights a rare situation in which the right to privacy collides with the protection of free speech.

The details of the case have been set out in the Independent newspaper, The Guardian, The Daily Mail and in Moores’ blog. They indicate a murky situation which might involve not only an abuse of power by the police, but also a potential political motivation behind the charges.

Regardless of the true situation, the police action could signal an extension of the traditional ambit of material evidence. This could mean that any public interaction with a post could expose a third party to the risk of prosecution without so much as publishing a single word.

There have been cases where Twitter users have been prosecuted for publishing offensive or threatening tweets, and one defence argument has been that Twitter, for some people, is a stream of consciousness rather than a systematic and methodical act of malicious publication. In some respects these grounds sit somewhere between suspended reality and temporary insanity.

“Likes” are in the same league, but are fundamentally different, both in meaning and context. They are transient – often instinctive – reflections of a mood or reaction. Prosecuting a “like” is perilously close to Thought Policing. A parallel in conventional policing might be to prosecute someone for groaning or smiling.

The Margate episode is not a precedent. In January a US radio host was arrested after liking the post of a former girlfriend. The circumstances of that case were, however, markedly different. The man was under a restraining order and the “like” was deemed to be a form of communication in breach of the order. There have been other recent cases where police have used “likes” as part of a criminal investigation, principally as supporting evidence for a prosecution.

The police action could mean that any public interaction with a post could expose a third party to the risk of prosecution without so much as publishing a single word.

Another case occurred in 2012 when an Indian woman was arrested and charged for liking a post criticising public sentiment over the death of a politician. The prosecution of “likes” is even more prevalent in less democratic countries. Earlier this month an Egyptian man was arrested after liking Mossad’s Facebook page.

The case involving Moores et al is, however, one of the rare occasions in the democratic world that the :”act” of liking a post has been materially used by police. It entails a great number of implications for online free expression. It also presents a number of interesting legal challenges.

For example, a landmark 2013 first amendment decision by the 4th Circuit Court of Appeals determined that the act of expressing interest on Facebook is the “internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

However the lower court in that case had taken the opposite view, ruling that “Liking a Facebook page is insufficient speech to merit constitutional protection,” because it does not “involve actual statements.”

Chief Judge William B. Traxler Jr., writing for a three-judge panel of the Fourth Circuit, said no such distinction exists.

“On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

While the US case was widely seen as a win for online free speech, the same cannot be said for the many nations that do not enjoy such constitutional protections. If British police – like their Indian counterparts – decide  that “liking” is a material expression equivalent to speech, the implications for the safety of online users will be significant.