Joey Barton: where online speech becomes criminal

The recent sentencing of former professional footballer Joey Barton for sending grossly offensive online communications has sharpened the legal focus on an issue that continues to test both courts and policymakers. Namely, where the line is to be drawn between protected freedom of expression and speech that attracts criminal liability.

Mr Barton was convicted on six counts of a 12-count indictment arising from social media posts directed at Eni Aluko, Lucy Ward and Jeremy Vine. While he was acquitted of a number of charges, the jury was satisfied that in respect of six offences against three separate individuals, the communications met the statutory threshold of criminality. He was sentenced to six months’ imprisonment suspended for two years, ordered to complete unpaid work and made subject to a two-year restraining order.

The case is noteworthy not merely for its outcome, but for the careful and considered sentencing remarks delivered by His Honour Judge Menary. In a matter that attracted significant public attention, the court appeared acutely aware of the need to articulate the boundary between lawful expression and conduct that falls outside the protection of free speech. The judgment provides a rare and public clarification of how that line is presently being drawn.

His Honour made clear that this prosecution was not concerned with political posturing, nor was Mr Barton being treated as a scapegoat for wider societal concerns about online discourse. On the contrary, the court explicitly reaffirmed the fundamental importance of freedom of expression. “Robust debate, satire, mockery and even crude or offensive language” were all identified as capable of falling within the scope of permissible speech.

However, the court was equally clear that there are limits. 

Communications that deliberately target individuals with vilifying comparisons to serial killers, or false insinuations of paedophilia, and which are designed to humiliate, distress or degrade, may cross the line into criminal conduct. Where speech goes so far beyond what is tolerable that it can properly be described as grossly offensive, it forfeits the protection ordinarily afforded by freedom of expression.

That distinction is of particular importance in the modern digital context. Social media has transformed the way in which information and opinion are shared. Individuals can now communicate with vast audiences instantaneously, often without the moderating influences that once accompanied public speech. The informal nature of online platforms and the absence of physical interaction can strip away opportunities for reflection, restraint and meaningful consideration of impact.

This presents a significant challenge for the law. Existing communications legislation, including section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, was not drafted with today’s social media landscape in mind. Nevertheless, those provisions are increasingly being relied upon to address harmful online behaviour. The rise in prosecutions under these sections has prompted concern among civil liberties organisations, who warn of the risk of a disproportionate curtailment of free expression.