Never mind Elon Musk, it’s Police Scotland reading our tweets that should worry us

If someone at my constituency surgery told me Elon Musk was reading their private messages on the social media site X, I would probably smile sympathetically, diligently take notes, and once they had left the building, gently file the papers away under “no further action”.

So when Humza Yousaf said he was certain that Musk was reading his private messages, I am afraid my reaction was that this was evidence of a degree of paranoia on the former First Minister’s part. I cannot imagine the world’s richest man, now appointed to a very senior role in the incoming Trump administration in the US, caring much about the private thoughts of an ex-Scottish First Minister.

What should be of more concern to us all is the interest that the police here in the United Kingdom are taking in our social media posts. The Daily Telegraph columnist Allison Pearson has told the story of how she was visited on Remembrance Sunday by two police officers in connection with the recording of a “non-crime hate incident” (NCHI) in relation to something she had posted on X, formerly Twitter, which had been reported as offensive. This episode has led to questions being asked as to why exactly the police are collecting this information, for what purpose, and whether it is an appropriate use of their resources.

Elon Musk has got better things to do than read Humza Yousaf's private messages on X (formerly Twitter) (Picture: Michael Gonzalez) | Getty Images

Waffle and obfuscation

Regular readers of this column might recall that I have had my own run-in with Police Scotland in relation to NCHIs. I learned at the end of last year that a social media post of mine, in which I had shared an article by my fellow Scotsman columnist Susan Dalgety, which criticised the Scottish Government for producing a policy for non-binary people, had been reported to the police as a potential hate crime.

Although the police found – unsurprisingly – that no crime had been committed, they nevertheless recorded an NCHI, the existence of which I only found out effectively by accident when the complainer against me, a trans rights activist, then tried to use it against me with the Ethical Standards Commissioner who polices the behaviour of elected politicians.

With the support of the Free Speech Union, I obtained legal advice to challenge the existence of the NCHI. I made a formal complaint to Police Scotland at the end of March. A reply was eventually received on August 6, comprising 11 pages of waffle and obfuscation, with large chunks being simply cut and pasted from published police policy documents.

Threat to free speech

Having taken legal advice again, once more with the support of the Free Speech Union, I have now taken the matter to the Police Investigation and Review Commissioner (PIRC), the body responsible for reviewing the way policing bodies in Scotland handle complaints made against them by members of the public.

My complaint against the police is essentially twofold. Firstly, in recording an NCHI in relation to my comments, they are threatening free speech and legitimate public debate, and, secondly, they have not applied their own policy on a consistent and even-handed basis.

In relation to the first part of the complaint, in 2021, the Court of Appeal in England, in the case of Harry Miller, upheld a challenge to the policy of recording NCHIs purely on the basis of the perception of the complainer. Miller was an ex-police officer who had his tweets, which stated gender-critical views, recorded as NCHIs for being allegedly “transphobic”. The court found that his right to freedom of expression under Article 10 of the European Convention of Human Rights had been infringed.

An unlawful policy

The judgment in the Miller case led to the College of Policing in England and Wales changing their guidance on the recording of NCHIs, effectively to provide for a “common sense” test so they would no longer be recorded automatically based purely on the perception of the complainer. For reasons best known to themselves, Police Scotland did not follow suit. My lawyer’s argument is that, in not so acting, Police Scotland have maintained a policy which is unlawful and in breach of human rights.

My second argument against the police is that whilst they recorded an NCHI in my own case, they took no action against two much more egregious examples, in the cases of Humza Yousaf, and the author JK Rowling.

There were reported to be hundreds of complaints against Yousaf in relation to a speech he made in the Scottish Parliament identifying the number of white people holding senior positions in Scottish public life. In April this year, in a deliberate test of new hate crime laws which had just been introduced, JK Rowling deliberately ‘misgendered’ individuals in social media posts. In neither of these cases were NCHIs recorded, despite numerous complaints being made.

Rising levels of crime

The response from the Police to my challenge on the second point was to say that they could not comment on individual cases. It is extraordinary that they would believe that an inconsistent, and potentially politically biased, application of their own policy can be justified without any explanation whatsoever.

There is a broader policy point behind all this. Over the last couple of weeks, I have attended meetings both with representatives of the farming community, and also of Scotland’s retailers. In both these circumstances, real concerns have been raised about rising levels of crime, both in rural areas, and in terms of anti-social behaviour in retail premises, with an explosion in shoplifting.

Whilst these two types of crime are very different, there is a common thread with the frustration that the police seem uninterested in investigating what are seen as ‘minor’ crimes, or simply lack the resources to follow these up.

I would gently suggest that if Police Scotland spent a little less time reading our tweets looking for hurtful opinions, and more time tackling real crimes that do significant harm to people’s lives and livelihoods, Scotland would be a better place. How about it, Chief Constable?

Murdo Fraser is Scottish Conservative MSP for Mid-Scotland and Fife