Judges have emphatically defended free speech and the ‘right to offend’ in their ruling on a case involving ‘misgendering’.
Mother-of-two Kate Scottow was arrested at her home in front of her children after she was reported to the police by Stephanie Hayden, a man who now lives as a woman, who complained Scottow used offensive language towards him online, repeatedly referring to him as a man.
Scottow was originally found guilty under the 2003 Communications Act and was handed a two-year conditional discharge and ordered to pay £1,000 compensation, but earlier this month, the High Court overturned the ruling and she was cleared of wrongdoing.
In their judgement, Lord Justice Bean and Mr Justice Warby said that “free speech encompasses the right to offend”, and reiterated a line from an earlier judgment on free speech which stated: “Freedom only to speak inoffensively is not worth having.”
Mr Justice Warby explained that the Communications Act is “not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature”, warning that the use of harassment proceedings would be a “serious interference” on free speech.
He added that the original case was also an “unjustified state interference with free speech”.
Justice Warby was also critical of the previous ruling by Judge Margaret Dodds, who had told Scottow: “Your comments contributed nothing to a debate. We teach children to be kind to each other and not to call each other names in the playground.”
The senior judge said his colleague “appears to have considered that a criminal conviction was merited for acts of unkindness, and calling others names”.
The ruling is expected to set a precedent for similar cases in the future.
Responding to the case, The Daily Telegraph welcomed the decision as “right”, saying police forces must take note: “it is now established that being rude on Twitter is not automatically grounds for investigation”.
It added: “The authorities should exercise common sense, and err on the side of the famous dictum that one does not have to like what someone says to defend their right to say it.”