Nobody in either country knows what their landmark new legislation is going to look like in real life. That’s a terrible feature in any law
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“Police told to target comics under new hate crime law,” was The Herald’s front-page headline on Tuesday, the Glasgow, Scotland, newspaper having received leaked guidance to police on how they should interpret the new Hate Crime and Public Order (Scotland) Act. The guidance to police “states that material regarded as ‘threatening and abusive’ under the (act) can be communicated ‘through public performance of a play’,” the Herald reported.
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The police protested: No, we won’t target dramatic or comedic performances, but people are free to report them. Terrific.
The legislation, which is due to come into effect April 1, adds age and “variations in sexual characteristics” to an existing list of groups offered explicit protections, as it is in Canada under the Charter and human rights legislation — though, bizarrely, the Scottish list still excludes sex itself; as in, for example, being a woman — and lowering the standard for criminal offence from “where there is an intention to stir up hatred” to “where it is likely that hatred would be stirred up.”
Quite the proverbial pub fight has ensued, on several fronts.
In the Scottish Parliament, the opposition Conservatives say this isn’t in keeping with how they read the legislation.
“F— this,” English comedian and free-speech stalwart Al Murray ventured on X. “I normally suck my teeth at the ‘haven’t you got anything better to do, copper?’ reflex, but for this I make the exception,” he continued. “It’ll mean the law looking daft.”
Quite right. The law already looks daft. Without these new rules in place, police recently investigated J.K. Rowling for insulting transgender ITV broadcaster India Willoughby on X. “India didn’t become a woman,” Rowling wrote earlier this month. “India is cosplaying a misogynistic male fantasy of what a woman is.”
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Willoughby reported the alleged crime herself to Northumbria Police. “J.K. Rowling has definitely committed a crime,” she told BylineTV. “It’s a cut-and-dry offence as far as I’m concerned.”
Rowling has essentially dared authorities to come after her, vowing she won’t delete anything on the government’s say-so.
Insult police? Really? One of the main complaints about the new law is that Police Scotland have vowed they will investigate every single complaint received under it, even as they’re rolling out what they call a “proportional response” approach to more, shall we say, physical crimes where no obvious leads present themselves. The proportional response is essentially to take a report and bung it in the proverbial filing cabinet, likely never to be seen again.
I don’t know if Scotland’s chilling piece of legislation represents Canada’s future under our own “online harms” legislation, or a future we managed to avoid by not going as far as many terribly misguided people wanted — and still want. It’s difficult in both cases to tell what the future will look like, though the U.K. is clearly far more comfortable with taste-based speech restrictions than we are. In 2012 a 21-year-old Welsh university student was sent to jail for 56 days for mocking a Premier League soccer player who collapsed on the pitch: “LOL, F–k (Fabrice) Muamba. He’s dead.”
If that standard were suddenly applied in Canada, a whole lot of people across the political spectrum would be in a whole lot of trouble very quickly. And a whole lot of people would be regretting their support for the “online harms” bill.
The key problem is that Scots, like Canadians, don’t know how police will enforce the new rules. Canadians have the additional worry of how a Human Rights Tribunal would enforce the new rules. In a briefing for journalists before the legislation was tabled, government officials stressed that the threshold for prosecution — criminal or before a tribunal ― would be just as it is now, no matter what the judicial or quasi-judicial venue. A mere insult doesn’t cut it, or it shouldn’t.
But that’s not what most of the “online harms” brigade wants or envisions: They want the people they don’t like on X and TikTok and other platforms banned according to their own definitions of “hate speech,” and with absolutely no official scrutiny apportioned to their own online conduct, which is of course entirely virtuous.
Essentially, in Canada and Scotland alike, nobody knows what landmark legislation on free speech is going to do. That’s a terrible feature in any legislation, never mind a bill concerning such a fundamental freedom. And it’s every bit as chilling as more explicit restrictions on what we can say and what we can’t.
The process is the penalty, especially in Canada. The Scottish police investigation into Rowling’s tweet took a couple of weeks. Count on any criminal or human-rights investigations to drag on for years. Unless you have Harry Potter money, probably better just to keep your mouth shut.
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