Parliamentary report on antisemitism calls for protection orders used to ban sex offenders from using the internet to be extended to hate crime. But these should be used to prevent serious harm, not as punishment for hate speech in general.
The All-Party Parliamentary Group Against Antisemitism has recently published a major report raising concerns on the rise of attacks on Jewish people in the UK. Some of its recommendations are fairly straightforward, such as funding for securing synagogues, but others may have far reaching consequences:
There is an allowance in the law for banning or blocking individuals from certain aspects of internet communication in relation to sexual offences. Informal feedback we have received from policy experts indicates that this is a potential area of exploration for prosecutors in relation to hate crime. If it can be proven in a detailed way that someone has made a considered and determined view to exploit various online networks to harm and perpetrate hate crimes against others then the accepted principles, rules and restrictions that are relevant to sex offences must surely apply.
We recommend that the Crown Prosecution Service undertakes a review to examine the applicability of prevention orders to hate crime offences and if appropriate, take steps to implement them.
The report refers to Sexual Offences Protection Orders (SOPOs).
These are designed to protect the public or individuals from “serious sexual harm”, which can include psychological harm. They are seen as very serious restrictions and cannot be used to punish general behaviours. Breaching an order can lead to up to 5 years in prison.
A court must administer these orders, which last for a minimum of 5 years; in most cases after sentencing. But police can apply for one if they have cautioned someone and believe there is a further risk. The court should carry out a risk assessment to see that the orders are necessary and proportionate. The court should also ensure that the orders are enforceable.
The antisemitic behaviours reported in media outlets are absolutely hateful, such as the use of a hash tag saying “Hitler was right”. But hateful as they may be, many of these instances of hate speech would appear to lack a demonstrable risk of escalation into specific attacks or even more targeted hate speech. This could make it difficult to justify a “protection order” against future behaviour, even if the offenders were to be sentenced and punished for their previous behaviour. Deterrent punishment should not be substituted by a protection order.
There have been lots of problems with SOPOs, as many have been drafted with excessive and unenforceable terms. Restrictions on internet use have been a particular problem with these orders. Courts have refused to accept that offenders should be prevented from “using the internet other than for work, study or finding employment”, though some courts have made orders asking that offenders keep internet histories for inspection.
From the experience with SOPOs, it is very unclear that using such orders for broad restrictions on social media would be seen as proportionate.
These orders require considerable resources from police and courts both in their imposition and monitoring. Particularly, the resources required for the police to monitor the use of social media by offenders could make them unenforceable.
It is unclear whether bringing in a new type of protection order would be helpful or create more problems down the line. For example, many other types of hate crime would probably have to be covered, not just anti-semitic or anti-muslim attacks.
The freedom of expression group Article 19 has published some useful guidance on how to balance the need to stop incitement to hatred with the protection of free expression, which says that administrative sanctions can have a place in dealing with hate crime.
The CPS Legal Guidance on Disability Hate Crime proposes a broad array of mechanisms, which can include ASBOS and other restriction orders. But we understand these are normally designed to prevent the victimisation of specific individuals, not general comments in social media.