Does the law need to change on policing social media?

The story so far: Graham Linehan, the creator of Father Ted and The IT Crowd, and a virulent campaigner against transgender rights on X, formerly Twitter, said he will be taking legal action against the Metropolitan Police after being arrested by five officers on arrival from America at Heathrow.

He claims – and the police have not denied – that he was questioned about three tweets that were said to incite violence, including one that said: “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops, and if all else fails, punch him in the balls.”

The heavy-handed police response prompted condemnation from Conservative and Reform politicians. Nigel Farage said it underlined his support for JD Vance, the US vice-president who has accused Britain of suppressing free speech.

Keir Starmer said on Tuesday that operational decisions were a matter for the police, but his spokesperson added: “The prime minister and the home secretary have been clear about where their priorities for crime and policing are, and that’s tackling anti-social behaviour, shoplifting, street crime, as well as reducing serious violent crimes like knife crime and violence against women.”

Wes Streeting, the health secretary, on Wednesday suggested that the law may need to be changed: “It’s very easy for people to criticise the police. The police enforce the laws of the land that we as legislators provide,” he said. “So if we’re not getting the balance right, then that’s something that we all have to look at and consider.”

The law in question is the Malicious Communications Act 1988, under which it is an offence to “send or deliver letters or other articles for the purpose of causing distress or anxiety”. Streeting may have simply wanted to sidestep an awkward question in his interview and to avoid criticising the police, but by doing so, he seemed to be wading into a long-running debate about whether the words “distress and anxiety” in the 1988 law have been interpreted too widely.

If you take the view that the police spend too much time investigating social media posts, it may not be the wording of the 1988 act that is the problem. It may be the requirement by law for the police to investigate every “malicious communication” reported to them.

In recent years, the number of alleged offences reported to the police has doubled – although in 2023, the Home Office told police they would no longer have to record cases that might “offend but were not threatening”. But it still requires a lot of police time to decide into which category individual posts that are reported to them belong.

Much of the criticism of the treatment of Linehan has focused on the number of officers who arrested him at Heathrow airport, and that they were armed. Government ministers quite rightly should avoid commenting on operational matters, but the rest of us can observe that five officers seems excessive – and indeed that arresting Linehan seems excessive, when he could simply have been asked to attend an interview. That the officers were armed, however, may be a side issue, as that is the norm for police at airports.

There have been many other cases where more officers have been deployed than seems necessary, and using the power of arrest when an interview (or phone call) might do. In January this year, six officers turned up at the house of Maxie Allen and Rosalind Levine to arrest them on suspicion of harassment, malicious communications and causing a nuisance on school property – because they had sent emails critical of the recruitment process for a new head teacher at their children’s primary school. After a five-week investigation, the police concluded that there should be no further action.

There may be no easy answers. Most people support the law against incitement to racial hatred – the Public Order Act 1986, under which Lucy Connolly was jailed for tweeting that asylum hotels should be burned down. And if Linehan had advocated violence against an ethnic minority, the idea that he was just exercising the right of free speech might have been harder to sustain.

But there is a problem – not least for Britain’s image abroad – when the police response to social media posts seems so heavy-handed. Obviously, Britain is nothing like a police state, but sending five or six officers to make an arrest in cases such as Linehan’s is disproportionate.