Our tech overlords are about to discover there are limits to free speech

Graham Thorpe was one of the greatest England batsmen of his generation. But for many years, as his recent Times obituary noted, his life and career were blighted by an acrimonious divorce playing out very publicly in the tabloids.

Thorpe struggled with depression and anxiety at the best of times and, his family disclosed, eventually took his own life. But the height of his career coincided with peak phone hacking, with a few newspapers using criminal methods to dredge through the private lives of virtually anyone in public life. Bad luck for Thorpe and his family: they were collateral damage in the drive for circulation.

The same was true of the former England manager, Sven-Goran Eriksson, whose private life became an obsession for the same newspapers, as we were reminded in assorted tributes following his death this week. Later trials and court actions showed that his own phone was hacked numerous times on behalf of editors who cared more for his love life (and sales) than his abilities as a coach.

If that feels like a throwback to a different, uglier age then you can thank the Human Rights Act, which now requires editors to balance two competing imperatives: the right to free expression with the right to privacy. An editor must now prove an overwhelming public interest before they can carelessly splatter a sports figure’s romantic escapades all over the ether.

There was no public interest with Thorpe or Eriksson, although a powerful case could certainly be made that it would have been right to reveal Herbert Asquith’s all-consuming Downing Street affair with the Honourable Venetia Stanley – complete with a “mobile bedroom on wheels”, according to novelist Robert Harris – at a time when Europe was on the brink of war.

Free speech is, in other words, a matter of judgements, of societal norms and of legal balances. It is not, except in the minds of libertarians such as Elon Musk, an absolute.

Even Musk must be aware of the conventional wisdom that, in a crowded theatre, it is simply wrong to falsely shout “Fire!” But, if he is, his behaviour during the post-Southport riots suggests that, far from giving a toss, he positively relishes spraying gasoline around the licking flames.

Musk genuinely seems to equate free expression with the truth, in the manner of someone who once had a nodding acquaintance with the writings of John Stuart Mill, and the philosopher’s belief – set out in 1859 in On Liberty – that “wrong opinions and practices gradually yield to fact and argument”.

Our very own Toby Young, who fights, if selectively, for free speech today was making the same argument the other night on GB News: “Surely let people make up their own minds about what’s false, what’s true, what’s misinformation, what’s reliable information; and if it’s misinformation, it will eventually lose the contest in the public square, in a free and open fight.”

You have to wonder if Musk and Toby really believe this. Even in the age of Mill there were gatekeepers of information – primarily newspaper editors and book publishers – and there were millions in society who had no meaningful voice in “the public square”, such as it was.

These days there is more of a public square, in the sense that billions of us are now connected and can inhabit the same digital spaces. However, Toby’s notion that there is a “free and open fight” for good and bad information in this online auditorium is delusional.

The average user of Twitter/X, for instance, is reported to have around 700 followers. Elon Musk has 196 million, so purely mathematically Musk’s voice is 280,000 times more powerful than his average user. But he insisted that his platform be reengineered to amplify his views so that it is difficult for any of the 360m-odd users of X to escape them – right, wrong, crazy, inspired, conspiratorial, or inflammatory. So his actual dominance of his own public square is truly intergalactic.

When Musk tweets or amplifies something maliciously wrong in a situation when gangs are literally roaming the streets looking to torch hotels sheltering asylum seekers, he is doing the same as Donald Trump did to inflame insurrection on 6 January 2021. The lie is halfway around the world before the truth has had a chance to sleepily log in and start scrolling.

Musk is, of course, a big admirer of Pavel Durov, who has just been arrested by French police and charged with failing to act against the use of his platform, Telegram, to promote child pornography, drug trafficking, fraud, money laundering, narcotic supply, terrorism and much more.

According to a new book about Musk’s takeover of Twitter by two New York Times journalists, the platform’s new owner wanted Twitter/X to be more like Telegram, which had a user base of 800m and only 30 staff.

Durov’s arrest was greeted with fury by assorted Putin associates and with dismay by the likes of Musk – who invoked Orwell – and former Fox News anchor Tucker Carlson, who said his arrest was “a living warning to any platform owner who refuses to censor the truth at the behest of governments and intel agencies”.

Durov’s arrest, in other words, is an act of censorship rather than one of law enforcement – because, in the Carlson/Musk world, free speech trumps all, and there are absolutely no harms that can be weighed in the balance against it. A platform with three staff per 100 million users is nothing more than a bear pit. It is a literally lawless public space. Good luck with a “free and open fight” there.

Of course, there are legitimate arguments for end-to-end encryption of the sort that allows for privacy; for political dissidents to avoid persecution; for journalists to be able to work free from state surveillance, and so on. But Durov’s arrest and recent EU warnings about the Wild West that Musk’s Twitter/X has become suggests that we are approaching a moment of reckoning.

Just as Rupert Murdoch’s newsrooms were eventually brought to heel for the years of acting with apparent impunity, so the new overlords of the information ecosystem are about to discover that there are indeed limits to free speech in any civilised society.

Meanwhile, let’s ditch the conceit that we live in an age of a “free and open fight” in which truth will somehow thrive in these new feral jungles of the sort Musk has created.

John Stuart Mill was a great thinker, but he never had to wrestle with an algorithm. Our age needs new philosophers – and fast.

Alan Rusbridger, a former editor of The Guardian, is editor of ‘Prospect’ magazine