The concept of right and wrong has been up for debate since humanity could start questioning the world around them. And it is a concept that still needs to be solved. So how do we regulate intangible concepts and enforce consequences and penalties on ideas that no two people might define precisely the same?

The Universal Declaration of Human Rights underpins British law, there are arguably two that encapsulate the scope free speech covers.

Article 2 “Everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or another status.

Article 19 “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. (United Nations, 1948).

Index on Censorship chief executive Jodie Ginsberg said: “Numerous rulings by British and European courts have affirmed that Freedom of Expression includes the right to offend. Defending everyone’s right to free speech must include defending the rights of those who say things we find shocking or offensive. Otherwise, the Freedom is meaningless.” (Index on Censorship, 2018).

Justice Warby and Lord Justice Bean ruled that the right to offend is under Freedom of Speech in the Scottow and Hayden Court of Appeal case. The case followed cis-gendered woman Katherine Scottow and transgender woman Stefanie Hayden. Scottow was arrested in 2019 for sending hate speech to Hayden by mis-gendering her, calling her a racist and a pig in the wing online. Speaking on their decision, Lord Justice Bean and Justice Warby stated: “Freedom only to speak inoffensively is not worth having…Those wishing to express their views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted.”

Stefanie Hayden spoke to The Telegraph about the decision and the possible effects this could have on the LGBTQ+ community, stating: “[The judgment] encourages online trolls to abuse, dox and intimidate transgender persons. This is unfortunate and a kick in the teeth to the entire LGBT community.” (Robledo, J. et al. (2020). This ruling will not change the law, but this judgment could affect future orders regarding the right to offend.

Sanjay Bhandari, Chair of Kick it Out, said: “Social media users have benefited from a right that does not exist in the real world. Not only do they have freedom of speech, but they have the freedom to force people to hear it. People who play, watch and work in football are often the victims of such vicious trolling. We welcome the principle of extending the user empowerment provisions in the Bill to close this loophole. Social media companies must make available technology to give us the online experience we desire. We shall review the amendments to the Bill in detail but encourage parliamentarians to move quickly.” (Sanjay Bhandaria,2022)

Captain Sir Tom Moore became a “national inspiration” at 100 for his resilience during lockdowns in the UK. He died in 2022 following Covid-19 complications. The day after Moore died, Joseph Kelly tweeted, “The only good brit soldier is a deed one, burn auld fella, buuuuurn.” Kelly was charged and later convicted of violating the UK’s Communications Act for a “grossly offensive” tweet.

The Communications Act, passed in 2003, makes it a crime to “send a grossly offensive message or of an indecent, obscene or menacing character over a public electronic communications network.” Those who violate the law face fines and a potential jail sentence of up to six months.

Kelly’s conviction over a single ‘hateful tweet’ tweet may lead some to argue that these laws are not about tracking down and punishing egregious violators for campaigns of harassment and threats. Arguably this example means that these laws are dangerous and will ultimately cause much more harm to the citizens of the UK. Could this sentencing set a precedent that any comment deemed ‘hateful’, whether criticising someone in power or of notability, could lead to a conviction?

So who actually has the right to offend and how to we actually regulate without impeding on free speech?