Hate speech in Scotland

JK Rowling will not delete anti-trans tweets, she says, just because the Hate Crime and Public Order (Scotland) Act 2021 is finally coming into force, even though India Willoughby received death threats after Rowling’s tweets. Well, of course she won’t. She does not have to, because criminal law is not retrospective- the Act will not apply to those tweets.

If the Act had been in force, could it have applied? Rowling called India Willoughby’s female expression a narcissistic, shallow, exhibitionist, misogynist performance of a male fantasy.

The offence of “stirring up hatred” in s4(2) could apply. Rowling’s tweets are abusive. Could they be called “threatening”? They inspire a great deal of further hatred, including death threats. Being picked on by Rowling is dangerous for people.

The second condition is that the offender “intends to stir up hatred” against a group. Groups include trans people, LGB, intersex, disabled people and perceived religious affiliation. Transgender identity is defined as including binary trans people, nonbinary people, and people who cross-dress. Hatred against a number of trans people, not the whole group, is an offence.

Rowling referred to “trans-identified men who send misogynistic abuse”. She might claim she was not inciting hatred against all trans, just the bad ones (Irony). Arguably that is inciting hatred: she claims trans women send abuse.

The problem is that if the accused brings evidence that the speech was “reasonable”, the prosecutor must prove beyond reasonable doubt that it was not. It is “reasonable” if protected by the right to freedom of expression in the ECHR, including a right to express “ideas that offend, shock or disturb”.

So it would be a brave Lord Advocate that prosecuted Rowling, and a brave procurator fiscal who prosecuted even the most rabid anti-trans tweeter. Rowling and the other haters will have a boundary to push at, daring the prosecuting authorities to intervene. Anyone prosecuted would have unlimited oligarch money to defend their case. Nobody spreading hatred of trans people will be prosecuted under the Act, I predict. Delightful as it would be to see Rowling imprisoned for seven years, it is not going to happen.

Elon Musk’s Twitter, or whatever he calls it now, would also be criminally liable, for “displaying, publishing or distributing” the tweets. Twitter is an “information society service” as defined by the EU law referred to. Will Musk be prosecuted? No. Will a sheriff grant a warrant to enter Rowling’s house in Cramond and seize her computers and phones, because an offence has been committed there? No.

If Twitter was an offender, Musk has “consented or connived” at the offence, by dismantling the protections against transphobia, and not preventing the industrial-scale dissemination of transmisic tweets, but Musk will not be imprisoned either, or even fined.

As far as trans people are concerned, I predict the Act will have a negative effect: the haters will push the boundaries, and no action will be taken. They will complain noisily about being silenced. No trans person will benefit by the delayed coming into effect of this law. Possibly, Rowling let rip just before the Act came into force to bring it into undeserved disrepute.

Ach, it’s a pain. I enjoyed visiting Chichester Cathedral with friends, so here’s a picture.