On the 16th August 2024 Kieran Usher became the first adult in the United Kingdom to be charged with a riot offence. No such historical firsts are to be expected when dealing with disinformation which has fuelled violence during the recent riots. This fact demonstrates that free speech is not under threat. If anything, there should be more control over the spread of disinformation.
Cases like Kieran Usher’s seem relatively unshocking. The police and justice system dealt with riots in 2011. They have the tools to identify suspects and prosecute based on clearly defined laws. Prosecution for violent crimes is expected. Cases are largely relatively straightforward. Where the most complexity in the 2024 riots has come from is how to deal with the disinformation which has widely been seen as a catalyst of violence in the riots. Defined by Merriam-Webster, disinformation is information ‘deliberately and covertly spread in order to influence public opinion and obscure truth’. Where there has been disinformation directly causing violence or harm, there have been arrests. But it is disinformation which does not directly cause harm that is more dangerous as it is less likely to be dismissed as inflammatory. It is this rhetoric online that shows that free speech is not truly infringed upon.
Consider the disinformation which was spread in an attempt to identify the attacker in the Southport stabbings. Bernadette Spofforth posted on X that the attacker was ‘Ali Al-Shakati’, labelled a Muslim asylum seeker who arrived on a small boat and holds a place on MI6’s watch list as a terror suspect. She was arrested and bailed on suspicion of stirring racial hatred through false communications, pending further enquiries. Her arrest, along with others for crimes online, are part of what Edward Grange (a criminal defence lawyer) considers the Online Safety Act’s ‘first significant test’.
This misidentification of the Southport attacker did have a significant impact on the violent disorder which followed in the last three weeks. However, it was not just due to Ms Spofforth’s post. Channel3Now followed up with a story that also identified the attacker as ‘Ali Al-Shakati’. The seemingly reputable news page no doubt garnered legitimacy to the story and gave disinformation traction in social media spaces. And yet no one at Channel3Now has been arrested. This simple fact highlights the limiting practical realities that uphold free speech and limit persecution.
First, there is the simple fact of geography. Their main office is reported to be in the United States. This makes charging anyone at Channel3Now as culpable for violence in the UK increasingly difficult, as to commit an offence under the Online Safety Act 2023 you must be a habitual resident in the UK.
The same problem occurs with popular commentators. Renowned podcaster Joe Rogan posted about 4000 arrests in Britain likening them to ‘thought police’ in Soviet Russia, something which Elon Musk reposted. His claims were categorically wrong, but their comments reached the front pages of newspapers nonetheless, legitimising anti-government rhetoric in the riots. Yet, as commentators from abroad they effectively cannot be reached by the law, even if the content had directly caused harm.
Second, no current UK laws guard against disinformation as a lone offence. Notice that Ms Spofforth’s arrest on false communications is qualified by the fact that it stirred up racial hatred. This is a problem that the Online Safety Act 2023 does not fix. False communications must also cause ‘non-trivial psychological harm’ or threaten or cause physical harm. The threat of £18 million or 10% of global annual turnover against social media companies for not guarding against this harm is significant. But it does not force social media companies to ensure disinformation does not spread if the only crimes under the act are identified as needing to cause harm. This ultimately means that the law precludes action which might be pre-emptive in any form. This is because harm must occur first for disinformation to be deemed illegal or dangerous under the act. Therefore, any potential harm by disinformation is not combated by current UK laws.
In fact, you can earn money by spreading disinformation and going viral. Musk’s social media company X introduced ad revenue sharing for X account holders. You can double down by paying for verification ticks which promote your content. This all makes for a social media platform which incentivises spreading sensationalist news stories to garner the most interactions and revenue for users. Ultimately, this means the spread of disinformation is no longer contained to the usage of powerful political actors (i.e., Russia’s role in the 2016 US presidential election). Now any, and every, political commentator can spread disinformation with little consequence. Free speech, in other words, triumphs over regulation of disinformation.
Of course, the Online Safety Act 2023 is not totally without merits. In fact it has been used successfully against genuinely violent and hateful rhetoric online. Both Jordan Parlour and Julie Sweeney’s arrests fell under the terms of the Online Safety Act 2023, showing how a clear definition of the law online can lead to effective police work against those who commit a crime. Also, the possibility of significant fines against social media companies will no doubt grab the attention of the largest companies.
But it does not go far enough. Its status as a UK law means there is little safeguarding from harmful online content spread from abroad. And crucially, without laws against disinformation, pre-emptive action cannot be taken against those who post provocative but not directly ‘harmful’ disinformation. This means there is an existing platform for all on social media to spread disinformation, with little worry of a threat to free speech. Unlike Kieran Usher’s case, there will be no symbolic charging against disinformation.
What is needed now is an overhaul of legislation to match the threat disinformation holds. We need a coordinated global enforcement system, which outlaws disinformation as a lone offence. Only then can the swift and comprehensive work to stamp out riots over the last three weeks be matched by stamping out disinformation.
