The Legal Challenges in Regulating Content, by Stuart Macdonald, Professor of Law at Swansea University

Following the terrorist attacks in Manchester and London, the Prime Minister reiterated her commitment to halting the spread of ‘poisonous propaganda that is warping young minds’, referring particularly to online content and the role of social media companies. In considering any proposals for the creation of new legal powers, it is helpful to examine the already-existing offences of encouraging terrorism and disseminating terrorist publications. These illustrate the challenges involved in regulating online content whilst safeguarding basic rights.

Found in sections 1 and 2 of the Terrorism Act 2006 respectively, the encouraging terrorism and disseminating terrorist publications offences had multiple objectives: to prevent radicalisation by stopping the spread of violent extremist ideology; to protect members of the public from statements that might cause disgust or offence; and, to reassure the public that the Government was taking steps to ensure their safety. The encouraging terrorism offence was also designed to fulfil the UK’s obligation, under Article 5 of the Council of Europe Convention on the Prevention of Terrorism, to criminalise ‘public provocation to commit a terrorist offence’ – although it is important to note that the UK offences goes further than required by the Convention in two respects: by encompassing reckless, as well as intentional, encouragement; and, by stating that it is irrelevant whether the published statement did in fact create a danger that a terrorist offence would be committed.

To establish liability for one of these offences, three requirements must be established. The first concerns the conduct of the defendant. For the encouragement of terrorism offence, the defendant must have published a statement or caused another to publish a statement. A ‘statement’ is defined as a ‘communication of any description’, and includes communications consisting solely of words or pictures, whilst publishing is defined as ‘publishing [the statement] in any manner to the public’ and expressly includes providing an electronic service by which the public have access to the statement and using such a service to enable public access to it (so could include both Internet Service Providers and website administrators). The conduct element of the section 2 offence is defined in a similarly expansive manner. A publication is ‘an article or record of any description’ that contains matter that can be read, listened to and/or looked at or watched. The five specified forms of dissemination include providing a service that enables others to look at the publication or acquire it, and transmitting the contents of such a publication electronically.

The second requirement focuses on the content of the statement and its likely interpretation. For the encouragement of terrorism offence, it must be shown that the statement was ‘likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences’. The public includes those in other countries, as well as the UK. For the section 2 offence, the publication in question must satisfy one of two tests. The first is almost identical to the test for the section 1 offence, whilst the alternative is that the publication was ‘likely to be useful in the commission or preparation of [acts of terrorism] and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them’.

Both offences thus employ the nebulous term ‘indirect encouragement’. Whilst the statute leaves this term undefined, it does offer as an illustrative example statements/publications that satisfy two conditions. The first is that the statement/publication glorifies the commission or preparation of acts of terrorism. This could be a past or future terrorist act, or acts of terrorism in general. The second is that the statement/publication is one from which members of the public (section 1) or the recipient (section 2) ‘could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by [them/him] in existing circumstances’. Glorification is itself defined as ‘any form of praise or celebration’. When combined with the UK’s broad statutory definition of ‘terrorism’, which contains no exception for industrial protest or just cause, it follows that statements or publications praising the actions of Nelson Mandela in the early 1960s, or the overthrow of Colonel Gaddafi in 2011, could amount to the indirect encouragement of terrorism. The breadth and ambiguity of the term indirect encouragement is increased still further by two additional factors: first, it is unclear how many members of the public amounts to ‘some’, particularly given that the statement/publication may be available to a global audience of millions; and, second, it is irrelevant whether anyone was in fact encouraged to commit, prepare or instigate an act of terrorism or made use of the publication in the commission or preparation of a terrorist act.

The final requirement of these offences concerns the defendant’s state of mind: he must either have intended to encourage terrorism (or, in the case of section 2, intended to assist in the commission or preparation of acts of terrorism), or have been reckless as to whether the statement/publication would have this effect. There is no requirement, as such, to prove a terrorist purpose. However, where the allegation is of reckless encouragement of terrorism, there is a defence of non-endorsement. This applies where: (a) the statement/publication neither expressed the defendant’s views nor had his endorsement; and, (b) in the circumstances it was clear that the statement/publication neither expressed his views nor had his endorsement.

From a human rights perspective, these offences raise (at least) two sets of concerns. First, their wording is deliberately expansive, so as to ensure flexibility and avoid under-inclusivity. The result, however, is that the offences are overly broad and their boundaries uncertain. In response to concerns that this could result in the offences being used inappropriately, the Government emphasised that prosecutions may only be brought with the consent of the Director of Public Prosecutions. Commenting on this practice of combining overly broad offence definitions with reliance on prosecutorial discretion, the Supreme Court in R v Gul stated that it amounts to an abdication of legislative responsibility to an unelected official. Second, the ambiguity and broad reach of these offences may have a chilling effect on the freedom of expression of members of so-called suspect communities.

Yet inhibiting discussion of political and religious ideology in this way appears to run contrary to the stated aim of the UK’s Prevent strategy: to engage in the battle of ideas. In turn, this inhibitory effect can contribute to the very sense of grievance and alienation that radicalisers seek to exploit. As such, there is a danger that – if not carefully delineated and curtailed – these offences, and any additional powers that may yet be created, could prove counter-productive, undermining one of the key rationales for their very existence.

Views expressed within this commentary do not necessarily reflect the views of the United Nations, and Tech Against Terrorism.