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Should ‘being offensive’ Be an Offence?

In February 2021, Merseyside Police shared an “incorrect” statement on social media. The message “being offensive is an offence” was shared on Twitter, displayed on a billboard on a van with police officers surrounding it.

The backlash was fierce and fast. Social media users accused the force of being “the thought police”. One Twitter user commented, “Utterly chilling. In a free society the right to be offensive is fundamental”.

In fact, such was the scale of the backlash that Merseyside Police was forced to apologise for the statement, and clarify that being offensive in itself was in fact, not an offence.

In a statement, superintendent Martin Earl said that the “well-intentioned” poster was part of a campaign designed to encourage people to report hate crimes, and apologised for “any confusion” it may have caused.

The situation has sparked debate about what being offensive is, who decides what offensive is and isn’t, whether or not it should be a crime to be offensive and where the boundaries are between hate speech and free speech (if any should exist at all).

The Facts

Merseyside Police were forced to apologise after a campaign described by some as “chilling” was launched in the Wirral area of Liverpool.

A digital advertisement was displayed on the side of a van, in apparent solidarity with the LGBT community, encouraging people to report hate crime to local police. The message read, “being offensive is an offence. Merseyside Police stand with and support the LGBTQ+ community, we will not tolerate Hate Crime on any level.”

It comes after it was reported that hate crime hit record levels in 2020, with over 105,000 hate crimes reported to the authorities, increasing 8% from the previous year.

The advert was intended as a show of support for the lesbian, gay, bisexual and transgender communities during LGBT History Month. However, it received fierce backlash from Twitter users who disagreed with the controversial statement.

Many people thought the police were overstepping their boundaries and attempting to legislate against free speech. Critics have hit out at the wording of the message, accusing the police of deliberately attempting to undermine free speech – which includes the right to offend – in the name of diversity and hate crime.

The Free Speech Union accuses Merseyside Police of being “ignorant of their legal obligation to safeguard freedom of expression”.

Superintendent Martin Earl, in a statement, said, “We would like to clarify that being offensive in itself is not an offence.”

“A message on an advan and social media this weekend by the Local Policing Team on the Wirral to encourage people to report hate crime, although well intentioned, was incorrect and we apologise for any confusion this may have caused.”

In a scathing public letter to Merseyside Police, the Free Speech Union addressed their concerns about the effects that this poster could bring, despite an apology and clarification by Merseyside Police.

They wrote, “As you will be aware, the potential mischief done by Merseyside Police here goes beyond getting the law wrong. The message, despite any good intentions behind it, ostensibly communicated an intent to investigate lawful speech and, as such, it was potentially unlawful.”

“It constituted a very large public statement by the force that it pays little heed to its legal obligation to safeguard freedom of expression.”

“It [is concerning], that the force’s internal processes, which include legal review, resulted in such a stark and public misstatement of basic law”.

There are two issues to deal with here. One is whether or not causing offence in itself should be an offence. The other is dealing with the reasons and motivation as to why Merseyside Police would publish such a fraudulent statement.

Firstly, as a basic and fundamental principle, being offensive in itself is NOT an offence. Whilst it’s important to note that freedom of speech has never been – and can never be – absolute, the basic freedoms of expression and speech are safeguarded under British law.

Freedom of expression is protected under the Human Rights Act 1998 which states, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

This law is why Merseyside Police was so wrong to put up such a message. It symbolises a direct defiance of the current legislation, irrespective of their actual intent. This was, to some, an act of war against free speech.

Offence in itself is incredibly subjective, and therefore can be difficult (if not impossible) to legislate against. Once society decides that there is an objective way to determine ‘offensive’ speech, it then has to decide who is given the authority to do so. That is too much power for any individual or group to possess.

Scotland has attempted to impose controversial hate crime laws.

Secondly, it would be interesting to know why Merseyside Police felt the need to send such a message in the first place. There are ways to discourage hate crimes and encourage reports of such without blatantly disrespecting the rule of law.

It raises questions as to whether or not certain communities are pressuring law enforcement to bend the rules to fit their worldview.

The fact that the police put out such an unlawful message is testament to this, as it shows that they would be willing to cause controversy and disregard speech laws to suit certain communities.

According to a report by the Independent, nearly three-quarters of hate crimes reported in the 19/20 year were race-related. Why then, did the police decide to use an LGBT flag to send a message? Are they implying that LGBT people take precedence over other groups?

In any case, we should be concerned by this. Had there not been a backlash, it’s hard to speculate whether or not the billboard would have been removed.

It’s worrying that the police showed a disregard for the law, but also more worrying that certain groups are putting pressure on law enforcement to do so.

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Aaron Fenton-Hewitt is an aspiring journalist and political commentator. He holds a Bachelor's degree in Film from London Metropolitan University, and a Master's in Writing for Creative and Professional Practice from Middlesex University. He wishes to continue his academic career, with a PhD in Politics or related field.

Aaron is also a freelance photographer, an avid foodie and an Arsenal supporter.

Aaron Fenton-Hewitt
Aaron Fenton-Hewitt is an aspiring journalist and political commentator. He holds a Bachelor's degree in Film from London Metropolitan University, and a Master's in Writing for Creative and Professional Practice from Middlesex University. He wishes to continue his academic career, with a PhD in Politics or related field. Aaron is also a freelance photographer, an avid foodie and an Arsenal supporter.

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