What legal tests do police use to decide if online speech is criminal under the Public Order Act?
Executive summary
Police and prosecutors apply the criminal law created and amended by the Public Order Act 2023 to online speech using tests that focus on whether the conduct or words amount to defined offences (for example, causing “serious disruption”, “harassment, alarm or distress”, or other expanded protest-related offences) and whether the statutory thresholds are met; the Act widened definitions tied to disruptive protest and gave law enforcement “greater powers” to prevent protest tactics [1] [2]. Commentary and civil liberties groups warn those powers broaden enforcement discretion and raise free‑speech concerns [2] [3].
1. What the new law changed — broader definitions and more powers
The Public Order Act 2023 amended existing public order law and introduced new measures that widen the remit of police powers to prevent and police disruptive protest activity, which can include online communications used to organise or incite disruptive action; observers describe the Act as increasing police powers beyond the prior Police, Crime, Sentencing and Courts Act 2022 [2] [1]. Netpol’s explainer says the Act adds search powers and other tools that were phased in after Royal Assent and notes some powers “do not appear to be in widespread operation” yet as of early 2025 — a reminder that statutory change does not automatically equal uniform policing practice [3].
2. How police translate speech online into a criminal test
Available sources describe the Act as changing definitions around disruptive behaviour: enforcement turns on statutory elements — whether speech either directly meets the wording of a criminal offence or forms part of conduct that does (for instance, organising or encouraging protest tactics that cause serious disruption). The academic and practitioner summaries of the Act emphasise those statutory thresholds as the point where ordinary expression becomes criminalised under the new framework [2] [1]. Sources do not provide a step‑by‑step police “checklist,” but highlight that police use offence elements in the Act as their legal test [2].
3. The key lines police will look for — disruption, intent and context
Reports on the Act stress that the crucial tests are whether speech or actions: (a) cause or are likely to cause serious disruption to the public or infrastructure; (b) amount to harassment, alarm or distress under the revised definitions; or (c) are linked to protest tactics the law targets. Those are statutory, context‑sensitive thresholds — meaning intent, likely effect and surrounding conduct all matter to charging decisions [2] [1]. Netpol highlights practical consequences such as expanded stop‑and‑search or disruption policing powers tied to these legal thresholds [3].
4. Civil liberties response — risk of expanded discretion
Civil‑society commentators and teaching resources summarising the statute warn the broadened definitions grant police greater discretion, risking over‑application to legitimate political expression online; tutors and campaign groups frame the Act as designed to “prevent protests” like those by Extinction Rebellion and to widen the notion of disruptive behaviour [2]. Netpol documents that some new powers were not yet widely used early on, suggesting both implementation uncertainty and room for contested interpretation [3].
5. What the sources do not say — gaps and implementation questions
The supplied reporting and summaries do not contain operational police guidance, charging protocols, court test‑cases applying the Act to purely online speech, or a formal checklist officers use when deciding whether a social post is criminal. They do not report specific prosecutorial thresholds for online-only messages or how courts have resolved borderline online speech cases under the 2023 Act (available sources do not mention operational charging guidance or case law) [2] [3].
6. Competing viewpoints and where to watch for clarification
Parliamentary debate records show Ministers framed the Act as protecting the public from “serious disruption,” while opponents warned it risked curbing protest and free speech — a clear political split shaping interpretation and enforcement priorities [4] [2]. Advocacy groups like Netpol provide a civil‑liberties critique; government sources emphasise public‑order protection [3] [2]. The next clarifying moments will be force guidance, CPS charging standards or court judgments applying the Act to online speech (available sources do not report those documents yet) [3] [2].
Limitations: this analysis uses statutory summaries, civil‑liberties commentary and parliamentary material in the available results; it cannot quote police operational manuals, Crown Prosecution Service charging guidance, or subsequent court rulings because those items are not present in the supplied sources (available sources do not mention CPS guidance or case law) [2] [3] [4].