Jane Devine: When ‘offence’ causes legal action, our freedom of speech is at risk

TAKING offence at something is a personal reaction; we are all offended by different things depending on our views, beliefs and the context in which we’re reacting. But, when we have a public reaction to something, when “the public” decide that something is offensive, as opposed to just offending them, and when their views influence legal action, we are beginning a process which may end up with us losing our precious right to free speech.

A number of years ago I went to see the comedian, Frankie Boyle, in Edinburgh. During the gig he told a joke about Madeleine McCann. He claimed to have attempted the joke on BBC’s Mock the Week a number of times, but it had always been edited out.

I didn’t find the joke funny (although plenty of others did) and it did make me feel uncomfortable. I didn’t complain though, or report him to the police: it was after all, a joke.

Last week, a jury in England formed a similar view, awarding Frankie Boyle £54,000 of damages, to be paid by the Daily Mirror who had branded him a racist, again on account of a joke.

Yet barely a fortnight earlier, 19-year-old Matthew Woods was jailed for 12 weeks by the same legal system for making jokes about the disappearances of April Jones and Madeleine McCann on his Facebook page. The magistrate in that case cited “causing offence” and “public outrage” as the reasons for imposing the harshest sentence he was able to.

So, on the one hand we have the law upholding freedom of speech and expression; and on the other, the law is curtailing that freedom on the basis of popular opinion and what some people find offensive.

That’s not how freedom of speech works. It isn’t a continuum: we either have it or we don’t. If we have it, we have to have a consistent and mature approach to it and accept we cannot remove it when the subject matter is too raw.

The comments made by Woods may well have been upsetting and distressing, but that is not a reason to jail someone. Particularly when the same comments in another context probably wouldn’t have been given much attention.

Would the magistrate have imposed that sentence if the comment was made in two years’ time and not when public feeling about April’s disappearance was and is so charged? Would Woods have been jailed if the comment was solely about Madeleine McCann who went missing in 2007?

Equally, would Frankie Boyle have been awarded damages of that amount (or at all) if his joke had been about Jimmy Savile and the Mirror had branded him a paedophile?

We cannot jeopardise our right to freedom of speech by applying it when it suits us: removing it on the basis of emotion, or offence, which are entirely subjective and of the moment.

And, we should always remember: it is entirely our choice to take offence. If we choose not to, it can end there.