A Crisis of Confidence: Can British Democracy Survive the Digital Age?

Many infamous interactions have taken place within the Oval Office this year, under this new notorious administration. But recently, a confrontation in particular, between the American Vice President and the British Prime minister, had seemed to expose and thus, materialise a brutal reckoning for British society. “There have been infringements on free speech”- was Vance’s declaration. Loss of free speech in the United Kingdom? The nation of the Magna Carta? The birthplace of John Stuart Mill. Preposterous. It just cannot be.  But could it? Vances’ words must have stung for a prime minister compelled to do whatever necessary in order to endure and survive the absolute anarchy of the summer riots of 2024. And who aspires to defend, ultimately, that the controversial measures he imposed during those trying times, had always been intended to pursue the public good. Nevertheless, an infringement is still an infringement, the intention cannot always justify the action, or can it? This nation deserves to know. So, this is what this article essentially sets out to do, it aims to examine the health of democratic freedom within the UK, through the lens of its freedom of expression. Using this analysis as inspiration for the visualisation of its future, a future undoubtedly honed by the ensuing chaos of the digital age. 

Historical truths

“We’ve had free speech in our country for a very long time”- happened to be the chosen retort of the British prime minister, in defense of Vance’s scathing allegations. History, it seems, chooses in this concern, to side with Starmer. Since the inception of that fateful Magna Carta, and the philosophy of libertarian freedom it managed to produce, its effects resounding in the forthcoming centuries, had granted the foundations of a democracy that enlightened Britain has now firmly been built upon. However, the legislative foundation of this fundamental freedom has now been officially enshrined and protected within the constraints of Article 10 of the Human Rights Act 1998, that grants its beneficiaries with the liberty to “hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. Ironically, however, the disregard of frontiers ends at a discretion of a wide expanse of formalities upheld in the purpose of maintaining social harmony such as in the interests of  “public security”, preventing the disclosure of information received in confidence, or “for the  protection of health or morals”, as section two of the article entails. Infringements are permitted on the grounds of defamation, the Common law’s interpretation of the freedom of speech makes it clear that the exercise of this liberty can never be performed in absolute terms. Infringement is inevitable to protect the common good. 

The American way

Vance’s audacity within this confrontation would likely stem from a deep-seated American pride—one forged within a Revolutionary War that was itself ignited in part, by the oppression of speech carried out by the very nation Starmer now ministers. The United States’ embrace of this freedom is moulded by a history of a constant wrestle against the tyranny of State Control. That is why they have a constitution. A document drafted not to grant freedom to the citizenry, that of course is unalienable, but to circumvent executive desire to impose a dangerous control over the American people, “Congress shall make no law… “. Therefore, their freedom of speech is constitutionally protected, it is given a place of primacy in law, justifications for state interference are few and far between, compared with the vaster judicial grounds courts use in Britain and the rest of Europe.  

The United Kingdom, like the rest of Europe, does not share a similar history, they have never had an external power assert such a threat to their liberty, that it had warranted the drafting of a constitution. Thus, many British freedoms are honoured within negative rights. The freedom of Speech as Lord Goff illustrates in (Attorney General v Guardian Newspapers): “we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather on an assumption of freedom of speech and turn to our law to discover the established exceptions to it”. This is, for patriotic Americans like Hugh Tomlinson (2018), is the breeding ground of authoritarianism. As the difficult reality of an “unwritten constitution” leaves the existing “loose and flexible set of rules” with no definite limits on state restriction. It leaves the opportunity for speech laws to change—sometimes by new legislation, but often by mere government decision, or a change in practice. 

The British Experience

Tomlinson’s ideas should evidently be taken with a grain of salt. It is not difficult to see how his American patriotism could have inspired a vision of totalitarian Britain, that is plain paranoid at best. However,  his analysis of the impacts of Britain’s “unwritten constitution” does not seem to be far-fetched at all, not just in theory, but in practical reality. As journalists like Paul Du Quenoy would point out, present legislation has been dangerously becoming far too vague, while speech authorities have had their powers become more defined and powerful. He cites the landmark Communications Act of 2003 that broadly prohibits “malicious communications” in seemingly undefined and subjective categories, making therefore, it a criminal offence to “persistently make use of a public electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety”. He would also rightly present how this act had essentially granted  the Office of Communications (Ofcom), to oversee all forms of communication online for illegal content. Du Quenoy profoundly declares that the current law prohibits vague speech offences and then empowers government agencies to prosecute them. Again, owing to Du Quenoy’s conservative political bias, his opinions could be seen as unjustly critical. But recent events in British history would beg to differ, because for the first time in British history people are being imprisoned for what they express online. 

Hostility towards the state’s newfound pervasiveness onto the digital interface had first found footing within the infamous “twitter joke” trial (R v Paul Chambers) of 2012. Wherein the cancellation of flights from Robin Hood Airport in Manchester to Northern Ireland, due to bad weather, had led to an emotional outburst on twitter by a 26-year-old Paul Chambers. His tweet “"Crap! Robin Hood airport is closed. You've got a week and a bit to get your s*** together, otherwise I'm blowing the airport sky high!!" had grabbed the attention of airport authorities who later involved the police. Paul was arrested a week later under section 127, of the CommunicationsAct of 2003. Charges were later dropped as the judiciary assumed that the alleged joke could not  have possibly been so “menacing” or obscene” that it would threaten the maintenance of public order. The point stands therefore that judicial judgements as to the nature and intention behind offensive speech, and thus its viability for prosecution, is just utterly subjective. This evaluation was testified by Judge Spielman Judge Spielman in the landmark Vejdeland case, quoting the dissenters in Feret, acknowledging that there lies real grounds by which the judiciary may be tempted to impose their subjective assumptions in the interpretation of convention standards, related to their own personal values or political ideologies, because the mere lack of legal certainty essentially enables them to. 

The profound judgement produced by the “twitter joke trial” had ignited a genuine fear in British society over the blatant overreach by government authorities to infringe their democratic rights, without remorse or true reason. But this case happened in 2012, mere fledgling years in the history of social media. The threat therefore seemed minimal, the fear it caused seemed quick to forget. Britain, had no way of knowing however, that they would soon get a much more menacing glimpse into the realisation of their fears, more than a decade later, within social unrest of the summer riots, ignited by the Stockport stabbings of 2024. Wherein the labour government headed by Keir Starmer, ironically one of the men responsible for authoring the nation’s first guidelines on policing the internet as Director of Public Prosecutions, issued the famous tweet that read: ““Think before you post. Content that incites violence or hatred can be illegal.” It was the timing, not the content of this tweet that was most profound. As the following day, Tyler Kay and Jordan Parlour became the first individuals to be convicted for their exercise of free speech online.They were both condemned for their “racially insensitive” posts of which included “tweets” that bore fire emojis, as well as “electronic images” that were said to have been designed to “incite racial hatred” which meant severe infringements under the notorious section 127 of the Communications Act. News of their conviction untimely coincided with the riots followed by the Southport stabbings, the viral video of their arrest, now watched over fifty million times had been reposted with the caption: “After three young girls were brutally murdered, speech is the crime that police focus on.” It did not matter to people that their arrest, in reality, had occurred a month earlier. Misinformation ran rampant. The riots spread. The government in an obvious panic, decided to introduce rapid sentencing measures intended to end the spread of misinformation online,  as a result, dozens were arrested for their online speech. Chaos ensued, as a response at the blatant government overreach and transgression of Article rights. The government had essentially encouraged public disorder in an attempt to mitigate public disorder.   The anarchy of the summer riots, would therefore go to show the government that their futile attempts at policing online speech were not just counterproductive, but down right draconian.

“Backdoors”

The confrontation in the Oval Office, as mentioned before, would have come off as just a snarky comment shared between rivaling political contemporaries. But Vance’s jab, unfortunately for Starmer, genuinely holds weight. Especially for the United States. Vance had alluded to the expansive impact that legislation like the ingeniously coined “Snooper’s Charter” has on “American technology companies” – and by extension, the average American in tech. Recently, Apple, the trillion dollar US tech firm, instigated a legal battle against a technology capability notice (TCN) granted under the Investigatory Powers Act, which essentially seeks to cease the use of Apple’s Advanced Data Protection (ADP) service to heavily encrypt personal data of all of its users, stored remotely online. ADP uses end-to-end encryption, which means that only the account holder can decrypt files. This legislation demands therefore, the creation of “backdoors”, something Apple has never done before in its history, which the government will use to decrypt files, in order to access sensitive data on demand. This obligation would fundamentally change the configuration of Apple’s icloud storage. It would just fundamentally change Apple, a company which prides itself on its dedication to user privacy and autonomy.  Other back-to-back encryption entities like Google and Whatsapp are more targets for the “Snooper’s Charter”. They too fear terminating their services in the United Kingdom , if it risks violating their established commitments to user privacy.  An encryption consultant briefed on the situation at hand, found it unbelievable that the British Government has essentially demanded  Apple’s help to “spy” on British users without their consent. Overbearing surveillance.  A spying executive. This is the breeding ground of self-censorship. A culture of fear based authoritarianism, that produces a silent citizenry too scared to truly speak their mind for the fear of persecution by their omni-present state. 

Offense and the abuse of power

However, the state assures its people that they interfere out of necessity. Necessity of promoting the public good. But, legislation like  the Online Safety bill, does contain clauses that seemingly suppresses speech that does not directly incite violence, but is merely “grossly offensive”. Still “grossly offensive” speech should be protected under Article 10, Section one, of the Human rights Act, that grants speech the freedom to “shock, offend or disturb”. The legislation seems to be utterly contrarian.  Surely, some things that  “offend, shock or disturb” are inevitably “grossly offensive” to some people, or groups of people, even those with protected characteristics. This is because, in order to speak you have to risk being offensive. Virtually anything can be offensive to the right person, it is a subjective criteria that is not only difficult but unjust for executive power to prosecute or control. Therefore, the philosophical debate surrounding the freedom of speech seems to unexpectedly orbit more around power, and its abuse rather than mere capacity.

Authoritarianism and victimhood

For the government knows what to say. Government knows best. Those are the words of 1984, now echoed in the twenty-first century. These are the words of a culture who has taken their freedom for granted. George Orwell would be rolling in his grave. I came across the book, “Coddling of the American mind” by Jonathan Heidt and Greg Lukianoff, that quickly became a big inspiration for this article. The book very clearly illustrates how western culture has seemed to value the validation and protection of individuals’ sensitive feelings over the exercise of freedom. People now essentially demand their state to protect them and others from words and ideas that may have the potential to hurt them. They forsake their civil liberties on the altar of false compassion. This ideology in turn, has not made people more altruistic. It has merely made them much more fragile. This fragility is what breeds the abuse of power, because the goal of any tyranny is to make the multitudes doubt their own innate ability to handle themselves. People have tragically forgotten that they alone have the power to control how words and ideas can affect them. Words and ideas only hurt us, because we allow them to. This internalised victimhood is what incurs a strong subconscious desire for an external authority to establish control, and that is the place where authoritarianism- the rule of one- begins to take rise. Free democratic society will then seem to die, not from oppression above, but from surrender within. 

Aryana Perera

Bibliography

Table of Legislation

Terrorism Act 2000

The Communications Act 2003

The Human Rights Act 1998

The Online Safety Act 2023

The Public Order Act 1986

Table of Cases

Attorney-General v Observer Ltd [1990] 1AC 109 (HL)

Chambers v DPP [2012] EWHC 2157 (Admin)

R (Harry Miller) v The College of Policing [2021] EWCA Civ 1926

Sunday Times v United Kingdom (No. 1) [1979] ECHR 1

Wingrove v United Kingdom [1996] ECHR 60

Secondary sources 

Books

Colclough, David. Freedom of speech in early Stuart England. Vol. 72. Cambridge University Press, 2005.

Bromell, David. Regulating Free Speech in a Digital Age. Springer International Publishing, 2022.

Heidt, Jonathan, Coddling of the American mind, how good intentions and bad ideas are setting up a generation for failure. Penguin books, 2018.

Mill, John Stuart. On liberty. Macmillan Education UK, 1966.

Articles

Corker, Charles E. Stanford Law Review, vol. 1, no. 4, 1949, pp. 784–89. JSTOR, https://doi.org/10.2307/1226364. Accessed 17 Mar. 2025.

Bacevic, Jana. "No such thing as free speech? Performativity, free speech, and academic freedom in the UK." Law and Critique (2024): 1-19. https://journals.sagepub.com/doi/abs/10.1177/00113921241264559

Bogen, David. "The origins of freedom of speech and press." Md. L. Rev. 42 (1983): 429

Bell, Emma. "Policing the culture wars in contemporary Britain." Towards a Very British Version of the “Culture Wars”: Populism, Social Fractures and Political Communication(2024)

Chadwick, Tommy. To what extent has the Investigatory Powers Act 2016 achieved an appropriate balance between the competing interests of Privacy and Intrusion?. MS thesis. Canterbury Christ Church University (United Kingdom), 2017.

Hughson, TaylorA., and Simina Dragoș. "The United Kingdom’s ‘free speech crisis’: From the fringes to a mainstream political project 2010–2023." Current Sociology (2024): 00113921241264559.

Juhan, S. Cagle. “FREE SPEECH, HATE SPEECH,AND THE HOSTILE SPEECH ENVIRONMENT.”Virginia Law Review, vol. 98, no. 7, 2012, pp. 1577–619. JSTOR, http://www.jstor.org/stable/23333530.Accessed 5 Feb. 2025.

Kentridge, Sydney. "Freedom of Speech: is it the Primary Right?." International & Comparative Law Quarterly 45.2 (1996): 253-270.

Kalliris, Konstantinos. "Online harm, free speech, and the ‘legal but harmful debate: an interest-based approach." Journal of Media Law (2024): 1-27.

Krotoszynski, Ronald J. The first amendment in cross-cultural perspective: a comparative legal analysis of the freedom of speech. Vol. 77. NYU Press, 2006.

Lasson, Kenneth. "The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler's Veto." Quinnipiac L. Rev. 37 (2018): 1.

Leiser, Mark, and Dr Edina Harbinja. "Content not available: Why The United Kingdom's Proposal ForA “Package Of Platform Safety Measures” Will Harm Free Speech." Technology and Regulation 2019 (2020): 78-90.

Masferrer, A. The Decline of Freedom of Expression and Social Vulnerability in Western democracy. Int J Semiot Law 36, 1443–1475 (2023). https://doi.org/10.1007/s11196-023-09990-1

Murphy, Cian C. "State surveillance and social democracy: Lessons after the Investigatory PowersAct 2016." Available at SSRN 3494880 (2019).

Parker, Ellen. "Implementation of the UK TerrorismAct 2006-the relationship between counterterrorism law, free speech, and the Muslim community in the United Kingdom versus the United States." Emory Int'l L. Rev. 21 (2007): 711

Mortimore, Roger. "What Magna Carta Means to the Modern British Public." Magna Carta and its Modern Legacy (2015): 56.

Steel, John. "Free speech,“Cancel culture” and the “War on woke”." The Routledge Companion to Freedom of Expression and Censorship. Routledge, 2023. 232-244.

Weaver, Russell L., and David F. Partlett. "Defamation, free speech, and democratic governance." NYL Sch. L. Rev. 50 (2005): 57.

White, G. Edward. "The First Amendment comes of age: the emergence of free speech in twentieth-century America." Michigan Law Review 95.2 (1996): 299-392.

News Articles:

Burnett, John Fekete Liz. “IRR statement on research findings on charging and sentencing patterns following the summer 2024 racist riots” (Jan 2025) IRR https://irr.org.uk/article/irr-statement-on-research-findings-on-charging-and-sentencing-patterns-following-the-summer-2024-racist-riots/ accessed 3rd March 2025

Du Quenoy Paul ‘’ Free Speech Wobbles in the U.K;’’ (March 2025) Tablet https://www.tabletmag.com/sections/news/articles/free-speech-wobbles-uk Accessed 23rd March 2025

Keate Noah, “UK’s Starmer hits back at JD Vance on freedom of speech” (Feb 27 2025) Politico https://www.politico.eu/article/uk-keir-starmer-jd-vance-freedom-of-speech-donald-trump/ accessed 3rd March 2025

Milmo, Dan. “Apple’s UK encryption legal challenge heard behind closed doors:’’ (March 14 2025) Guardian https://www.theguardian.com/technology/2025/mar/14/apple-uk-encryption-legal-challenge-heard-behind-closed-doors  accessed 24 March 2024

Tomlinson, Hugh “Why it's time for a British First Amendment to protect free speech” (2018) Prospect https://www.prospectmagazine.co.uk/politics/45744/why-its-time-for-a-british-first-amendment-to-protect-free-speech Accessed 25th March 2024

Payne Josh. “First sentences expected for stirring up racial hatred following riots” (August 2024) Independent. https://www.independent.co.uk/news/uk/crime/london-richard-williams-labour-facebook-police-b2593762.htmlaccessed 3rdMarch 2025